R v Finau

[2012] NZHC 3027

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-011-000590 [2012] NZHC 3027

THREE STRIKES WARNING

THE QUEEN

V

TALAIASI TIUETI KATA FINAU

Hearing:         16 November 2012

Counsel:         TL Nicholls for Crown

RS Garbett for Prisoner

Judgment:      16 November 2012

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:           Marsden Woods Inskip & Smith, P O Box 146, Whangarei 0140 for Crown

Mr RS Garbett, P O Box 5006, Whangarei 0140 for Prisoner

R V TALAIASI TIUETI KATA FINAU HC WHA CRI-2011-011-000590 [16 November 2012]

Three strikes warning

[1]      Mr Finau, given your convictions for sexual violation, for aggravated robbery and for disfiguring with intent to cause grievous bodily harm, you are now subject to the three strikes law.  I am now going to give you a warning of the consequences of any serious violence convictions.  You will also be given a written notice outlining these consequences which lists the serious violent offences.

[2]      If  you  are  convicted  of  any  serious  violent  offence,  other  than  murder, committed after this warning and if a judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[3]      If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment.   That will be served without parole, unless it would  be  manifestly  unjust.    In  that  event,  the  judge  must  sentence  you  to  a minimum term of imprisonment.

Sentencing - introduction

[4]      Mr  Finau,  you  appear  for  sentence  on  two  counts  of  unlawful  sexual connection and counts of aggravated robbery and disfiguring with intent to cause grievous bodily harm.   There are also summary charges of reckless driving and failing to stop when followed by red/blue flashing lights.  You pleaded guilty to all charges in the District Court and have been remanded to this Court for sentence.

[5]      The Crown has sought a sentence of preventive detention.  The primary issue I am therefore required to consider is whether you should receive a sentence of preventive detention or whether a finite sentence will provide adequate protection to the community.

Facts

[6]      The charges arise from your actions in suburban Dargaville in the early hours of the morning on 15 October 2011.  You had been drinking and smoking cannabis since late the previous afternoon.  You ended up at a party.  You were on your way home at about 4 o’clock in the morning when you entered the garden of the house occupied by your victim.  You tried the back door.  Finding it locked, you walked around the side of the house, tripping over and falling into the swimming pool.  You climbed out, found an unlocked ranchslider and entered the house.

[7]      Once inside you removed your wet clothes and walked up the stairs.   The victim, a 73 year old woman, woke to find you standing naked at her bedroom door.

[8]      She was frightened, of course.   She told you she had money in her purse which you could take.  She directed you down the stairs and towards the front door. She attempted to manoeuvre you outside.  You forced your way back in.  You forced her to a couch at the back of the kitchen/living room and hit her in the face with your fist.  This fractured her skull.  You then grabbed her by the forearms and pushed her back onto the couch.   You removed her pyjama pants and violently digitally penetrated her vagina.   You then masturbated in front of her face, told her you wanted to make love to her and forcibly tried to pull the rings from her fingers.  You were unable to achieve a full erection so stopped masturbating and directed the victim to go back upstairs.

[9]      Once in the bedroom, you pushed her onto the bed again.   You digitally penetrated her and you hit her in the face a number of times.  You ripped the phone from the wall and then lay on top of the victim and tried to pull the covers over her head.  Fearful that she would be suffocated or strangled, she resisted.  After a time you got off her, went to her wardrobe and dressed yourself in some of her clothes. You then picked up a pair of scissors from the bedside table and held them as one would a dagger.

[10]     You forced the victim back downstairs, demanding to know where her money and mobile phone were.  She told you where they were.  You then forced her into the

garage.  She told you where the keys to the car where and how to open the garage door.  Back inside, you tried to force her into a small laundry room.  She resisted. Left alone for a few moments, the victim noticed the garage door was open and attempted to escape.  She made it as far as the garage but remembers nothing more until waking lying on the doormat, bleeding heavily from her head and face.  She crawled on her hands and knees to neighbours for assistance.   Based on what you told the police, it appears that she lost consciousness as a result of a further beating from you when she called out for help.

[11]     Meanwhile, you had driven away in her car.   You were reported driving erratically by members of the public.  Your car was identified as that stolen from the victim.  You were pursued by a police officer using lights and sirens.  You finally stopped in the middle of the road at Wellsford and were arrested.

Victim impact

[12]     The victim sustained multiple fractures to her face and head, including a small skull fracture, depressed eye sockets, a jaw fracture and comminuted fractures where the bone is splintered or crushed.  There was some bleeding in the brain.  She sustained a deep two-inch long laceration through her top lip into her mouth that required stitches as well as lacerations and deep bruising over most of her face. There was bruising and haemorrhages in the genital area and bruising also to the cheek, back, feet, knees, buttocks and the back of the victim’s head.

[13]     She spent twelve days in hospital.  She required surgery to her face for the fractures and nerve damage and also plastic surgery.   She was unable to eat solid food for eight weeks and has lost her sense of smell.

[14]     The attack involved serious physical and emotional trauma for the victim and required an extensive period of recovery.   Prior to the attack she was an active, happy person who said she was enjoying her lifestyle.   She has since suffered a severe loss of confidence, particularly about her safety at night.  She feels degraded. Her face has been disfigured.   She is aware of comment and speculation in the community.   Many of her friends have been frightened and disturbed about what

happened.   She is having counselling to try and help her overcome her fears and feelings of insecurity.

[15]     The victim’s daughter was shocked and distressed to be called to the hospital and  to  see  her  mother’s  condition.    She  describes  it  as  horrifying  and  heart- wrenching to see her so “beaten and vulnerable”.  As both she and her sister lived a long way away, she decided to move in with her mother to help her recover from her injuries and get her life back on track.  She gave up her job and flat in Wellington to do so.

[16]     She confirms the impact on her mother - the loss of sense of smell, the change in her appearance, how it has sapped her confidence and her enjoyment of life.

Personal background circumstances

[17]     I have received information about your background and personal history from the pre-sentence report and reports written by two psychiatrists for the purpose of the preventive detention application.

[18]     You are a 25 year old, Tongan born, New Zealand resident.  You have been living in New Zealand since 2006.  You are married with one child, a 6 year old boy who lives with his mother in Tonga.  Although you have been apart for some years, she remains your wife and there has been intermittent contact when you visited Tonga at Christmastime.

[19]     In New Zealand you have worked in various jobs, most recently in Dargaville where you were living with another woman and members of her family.  You were working at a meat works there.

[20]     You seem to have had a reasonably stable childhood, although your mother was a harsh disciplinarian.   You  attended school until aged 18  when  you were expelled.  It appears that you began drinking alcohol and smoking cannabis from the age of 14.  You told one of the psychiatrists, Dr Skipworth, that you were regularly

drunk and stoned on cannabis while at school and were drinking alcohol to the point of blackout every weekend.

[21]     From 2009, you have said you became increasingly involved in alcohol and drugs.  You have lost two jobs through turning up for work in an intoxicated state. Your only previous serious offending – in Tonga for assaulting your then girlfriend – occurred when you were intoxicated.

[22]     You described in detail to Dr Skipworth drinking and smoking from when you finished work at about 5.00 p.m. on the day before the offending. You were, as I have said, at a party until about 4.00 a.m. in the morning and you said you were very intoxicated when you left the party.  You claim to have entered the victim’s property by mistake, thinking it was your own house.

[23]     You do not remember all of the offending, for example, use of the scissors. You claim that at no stage did you plan to physically or sexually assault the victim and can explain your actions only in terms of your intoxication.   You feel deep remorse and shame for what you have done and told the health assessors you would willingly participate in rehabilitation programmes, including drug and alcohol, adult sex offender treatment programmes or violence prevention programmes.

Approach to sentencing

[24]     For the purpose of deciding whether to impose a sentence of preventive detention,  I am  required  to  consider  whether  you  are  likely to  commit  another qualifying sexual or violent offence if released at the expiry date of a finite sentence. That enquiry requires that I first determine the appropriate finite sentence.   If I consider it is insufficient to protect the community,  I will need to consider the discretionary power to impose preventive detention.

[25]     I accept Mr Smith’s submission that, as the offences were committed as part of a connected series of events, concurrent sentences are appropriate.  I will begin with a consideration of the appropriate starting point on the most serious charges,

those of sexual violation, and then consider whether, as he suggests, I should uplift the sentence to take account of the associated violent offending.

[26]     The case of R v AM[1] provides the guidelines for the sexual offending.  Three bands are identified for unlawful sexual connection which is the category into which digital penetration falls.  Those of potential relevance are band 2 with a starting point range of 4 – 10 years, which is appropriate for cases of relatively moderate seriousness and band 3 with a starting point of 9 – 18 years, appropriate for the most serious offending of this type.   The question of which band applies raises a consideration of the number and nature of aggravating factors present.

Aggravating features

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

[27]     Counsel are agreed, and I accept, that the following are relevant aggravating features of your offending:

The level of violence and the threatened use of a weapon.  Both the physical and sexual assaults involved a high level of brutality.  In seizing and wielding

the scissors like a dagger, the level of violence was further escalated.

Secondly, the offending involved unlawful entry into a private home and the

detention of the victim.

Next, there is the vulnerability of the victim. As an elderly female living

alone, the victim was particularly vulnerable.

Finally, there is the extent of the victim’s injuries. They are, as I have detailed, both physical and psychological.  Rehabilitation has been long and painful.  The victim has been left with permanent disabilities and her quality of life has been permanently diminished.  It is relevant also that family

members have been affected.[2]

[2] R v AM at [44].

[28]   The Crown also contends that the premeditation involved is a further aggravating  factor.    That  is  disputed  by  the  defence,  which  characterises  the offending as “spur of the moment, aberrant conduct” resulting from intoxication and cannabis use.   While, as Mr Smith says, there was some degree of premeditation evident in the attempts made to enter the house, I consider that your offending could not be characterised as planned.   I have no doubt that you were heavily under the influence of alcohol and cannabis and I believe you entered the property in a state of some confusion.  I regard what happened as opportunistic rather than premeditated.

[29]     There are no mitigating features of the offending.

[30]     I consider  your offending falls within  unlawful sexual connection  (USC) band 3 which encompasses cases involving two or more of the aggravating features I have referred to, to a high degree or three of those factors to a moderate degree. Your offending involves more than three aggravating features to a moderate degree.

[31]     As  the  Crown  says,  your  offending  does  not  fall  neatly within  the  case examples referred to in AM. More helpful comparisons may be made with examples of cases referred to in AM at the lower end of rape band 3 which also captures cases in which there were two or more aggravating factors to a high degree or three or

more factors to a moderate degree.[3]    The case of R v Amohanga,[4]  for example, is

very similar on its facts with rape instead of digital penetration the main point of distinction.

[3] R v AM at [105].

[4] R v Amohanga [1989] 2 NZLR 308 (CA)

[32]     Mr Smith referred me to R v Roach[5] which is an example placed at the upper end of band 2.  Your offending, however, has a number of aggravating features not found in Roach, including the home invasion, a particularly vulnerable victim and a significantly greater level of violence and consequential injuries.

[5] R v Roach CA375/89, 8 February 1990.

[33]     I derive some assistance from R v Olver[6] which has much in common with your offending.  In that case the victim was a 72 year old widow living alone.  The

offender entered wearing a mask and carrying a knife.  He attempted to rape her but achieved only slight penetration.  He forced the victim to perform oral sex on him and to accompany him when he drove away.  The Judge adopted a starting point of

10 – 11 years imprisonment for the sexual offending, uplifted to 12 years to reflect the totality of what occurred.

[6] R v Olver [2012] NZHC 706.

[34]     Because it involved rape and oral sex, the level of sexual offending in Ulva was more serious but the violence involved in your case was much greater.  Against that, the element of kidnap was absent.  Having regard to the aggravating features involved and the consequential harm to the victim, I consider that a starting point towards the bottom of band 3 is called for.   I have come to the view that the appropriate starting point of 12 years imprisonment and that is apt to capture the totality of the offending.

[35]     I accept Mr Garbett’s submission that a further uplift would involve double counting the aggravating features.  As the Court of Appeal said in R v Baldwyn,[7] the USC bands require an assessment of culpability overall and do not allow for further uplifts in relation to specific aspects of the offending that do not involve unlawful sexual connection.  To the same effect is the comment of the Court in R v AM that what is required is a commonsense approach to overall culpability.[8]    It is on that basis that I have fixed a starting point of 12 years which I consider captures both the sexual and the other elements of the offending.

Aggravating and mitigating factors relating to the offender

[7] R v Baldwyn [2010] NZCA 472 at [28].

[8] At [49].

[36]     It is submitted that a discount of 30 per cent should be allowed to reflect both your guilty plea and your lack of previous convictions.  As I have indicated in the course of submissions, I do not consider that you are entitled to any credit for good character merely because you have not had any convictions during your time in New Zealand.  You have admitted to violent offending against your former wife.  Your serious addiction issues further militate against any discount above and beyond the

25 per cent for which you are entitled for your guilty plea.

[37]     From a starting point of 12 years then, a sentence of 9 years results.

Minimum period of imprisonment

[38]     The Crown also seeks the imposition of a minimum period of imprisonment. I may do so if I am satisfied that the one-third default minimum is insufficient to hold you accountable for the harm done, denounce your conduct, deter you or others or to protect the community.  The purpose of a minimum period of imprisonment is to avoid a release after one-third of the sentence where that would plainly constitute an insufficient response in the eyes of the community.

[39]     I am satisfied this is such a case.  The level of violence, the vulnerability of the victim  and  the serious  injuries  that  resulted,  satisfy me that  you  should  be required to serve at least 50 per cent of the sentence.

Preventive detention

[40]     Section 87(2) of the Sentencing Act requires three conditions to be satisfied before preventive detention can be imposed although, even if they are established, the sentence is a matter of discretion.  The first two conditions are satisfied.  You have been convicted of a qualifying sexual or violent offence and you were over the age of 18 years at the time the offence was committed.  The question is whether I am satisfied that you are likely to commit another qualifying sexual or violent offence if released at the expiry date of a finite sentence.   For that purpose, there are five factors which I must consider:

[41]     First, any pattern of serious offending disclosed by your history.   Next, the seriousness of the harm to the community caused by your offending.  Thirdly, the information indicating a tendency to commit serious offences in the future.  Fourthly, the absence or failure of efforts to address the causes of your offending. And, finally, the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[42]     The likelihood of your committing a further qualifying offence is addressed by the reports of the two health assessors.

[43]     Dr Skipworth said that he saw evidence in your past of adolescent conduct disorder and, in adulthood, anti-social personality traits.  However, he identified your alcohol and cannabis abuse as of more clinical significance.  He did not see you as suffering from a mental illness.   He assesses you as at moderate/ to high risk of reoffending.

[44]   Although initially assessing you at low risk of reoffending, the second psychiatrist, Dr Sakdalan, reviewed his report in the light of Dr Skipworth’s conclusions and agreed that you are at moderate to high risk of reoffending.

[45]     In asking for a sentence of preventive detention, Mr Smith says - relying on R v Hutchinson[9]  - that a previous conviction is not a necessary precondition to the imposition of preventive detention.   He relies on the assessment of the health assessors, the very serious harm to the community and to the victim, and the fact that you have not previously received any treatment for drug, alcohol or relationship issues.

[9] R v Hutchinson [2007] NZCA 55.

[46]     I accept that preventive detention may be imposed on an offender without a previous history of offending.   However, I agree with Mr Garbett that reliance on Hutchinson is misplaced.  That case was extraordinary in that it involved multiple and degrading sexual offending over a seven-year period.  The offender presented an unusually high risk of reoffending and plainly also a pattern of serious offending had been disclosed by his history.

[47]     I do not see such a pattern is established in your case.  The earlier assault in Tonga was relatively minor.  You have lived in New Zealand without incident for six years, since you were aged 19.  I agree with Mr Garbett that the attack in Dargaville presents as isolated and aberrant.  While I do not suggest that you are without violent propensities and have sexual issues to address, I consider the key driver of your

offending to have been your drug and alcohol abuse.

[48]     The health assessors’ report certainly point to a significant risk of reoffending in the future.  However, both psychiatrists emphasise that depends on the extent to which you engage with the treatment opportunities that will be available to you in prison.  As Dr Skipworth says, effectively engaging in psychological treatment for violence and sexual violence, as well as drugs and alcohol, will optimise your risk reduction.   Dr Sakdalan makes a similar comment in relation to sexual offending issues.   You appear to be genuinely remorseful.   That is certainly the view of Dr Skipworth and the probation officer.  You are shocked and shamed by your conduct. In  my view,  you  are  well disposed towards undertaking the available  treatment programmes. Such interventions have not previously been available to you before.

[49]     In my judgment, there is every likelihood that you will avail yourself of the opportunity to address the main drivers of your offending in the course of your prison sentence.  That prospect, and the absence of any pattern of violent or sexual offending, significantly militates against the risk of further serious offending in thje future.  I am not satisfied that you are likely to commit another qualifying sexual or violent  offence  on  release.    It  follows  I  consider  a  finite  custodial  sentence  is sufficient to address the risk you pose to the community.

[50]     Would you please now stand up, Mr Finau.

Result

[51]     The sentences that I impose on you are nine years imprisonment on the two counts of unlawful sexual connection and six years on the counts of aggravated robbery and disfiguring with intent to cause grievous bodily harm.

[52]     On the two  counts  of  unlawful  sexual  connection,  I impose  a minimum period of imprisonment of 4½ years.

[53]     On the charge of reckless driving, you are sentenced to a term of one month imprisonment and disqualified from holding or obtaining a driver’s licence for six months.

[54]     On the charge of failing to stop, you are convicted and discharged. All prison sentences are to be served concurrently.

[55]     Mr Finau, I have read your letter.  It confirms to me what I have already said to you in the course of my remarks.  I believe that your remorse is genuine.  I believe that you genuinely wish to address the causes of your offending.  If you are to do so, Mr Finau, you must take advantage of the opportunities that will arise in prison for you to  undertake treatment programmes.

[56]     I make the strongest possible recommendation that during your period of imprisonment you undertake such treatment for violence and sexual violence and drug  and  alcohol  dependence  as  are  made  available  to  you  by the  correctional authorities.

[57]     You may stand down now.