R v Funaki
[2015] NZHC 1658
•16 July 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-070-000122 [2015] NZHC 1658
THE QUEEN
v
ULUAKI FUNAKI
Hearing: 16 July 2015 Appearances:
G C Hollister-Jones for Crown
A C Balme for DefendantJudgment:
16 July 2015
SENTENCING NOTES OF GILBERT J
R v FUNAKI [2015] NZHC 1658 [16 July 2015]
Introduction
[1] Mr Funaki, you appear for sentence having pleaded guilty to six charges arising out of two separate incidents involving three victims:
Victim 1
(a) Sexual violation by unlawful sexual connection – digital penetration. (b) Wounding with intent to injure.
Victim 2
(c) Sexual violation by unlawful sexual connection – connection between
your penis and the victim’s mouth.
(d) Sexual violation by rape.
(e) Sexual violation by unlawful sexual connection – digital penetration.
Victim 3
(f) Assault with a weapon.
[2] The maximum penalty for each of the sexual violation charges is 20 years’ imprisonment. The maximum penalty for wounding with intent to injure is seven years’ imprisonment and the maximum penalty for assault with a weapon is five years’ imprisonment.
The facts
Victim 1- 3 July 2014
[3] Sometime after 2.00 am on 3 July 2014, Victim 1, a 27 year old female, awoke to find you lying on top of her, kissing her. You had an item of clothing wrapped around your head obscuring part of your face. The victim’s partner was working in an outside room at the time. When the victim started to scream, you
pointed a knife at her and told her to be quiet. You then partially removed the singlet and pyjama pants she was wearing and held her legs down to stop her from struggling. You then put your fingers into her vagina. When she continued to struggle, you put the knife down on the bed so you could hold both her legs. However, she kicked out, striking you in the face.
[4] You then retrieved the knife and pressed it against her throat causing the blade to become embedded under the skin at the front of her neck. The handle separated from the blade. You then placed your hands around her throat, choking her and preventing her from screaming while the blade was still embedded in her neck. She then took a trinket box from her bedside cabinet and struck you with it. She managed to break free from your hold and remove the knife blade from her neck. Throughout this struggle, you told her to be quiet, said that you were a gang member and threatened to kill her.
[5] You eventually decided to leave. You took the blade of the knife and the handle and wrapped it in a scarf belonging to the victim. You also used the scarf to wipe surfaces in the room. You told the victim that if she called the police you would kill her. You then ran from the house.
[6] When spoken to by the police, you said that you had been out walking and were hungry. You said that you had gone into the property to find food when you saw the light on at the victim’s house and money and tobacco on a bench area. You explained that you entered the property through an open window and took the money and the tobacco and picked up the knife from the sink. While looking through the window you also saw the victim in her bed. You admitted that you threatened her, assaulted her and sexually violated her but could give no explanation for doing this.
Victims 2 and 3 – 6 January 2015
[7] At about 4.00 am on 6 January 2015, you entered Victim 2’s home through an unlocked door. You used your lighter to find your way into the kitchen where you picked up a knife and went to Victim 2’s bedroom. She awoke to find you lying on top of her, holding a knife to her throat and repeatedly saying, “Kiss me or I’ll kill you”. You tried to kiss her, using your tongue. You said that you had been watching
her house, loved her, had asked around for her number but was too shy to call her. You also asked where her husband was. You lay down on the bed beside her, grabbed her hair, pulled her head towards your penis and forced it into her mouth. The victim pulled back and shut her mouth but you continued trying to put your penis back into her mouth. You then briefly performed oral sex on her while grabbing her breasts. You then got up and pushed her legs apart before inserting your penis into her vagina. She managed to push you off her. However, you continued to rub your pelvis against her but your penis became flaccid. You picked up the knife and told her that you would kill her before apologising and then again performing oral sex on her.
[8] You then your inserted your fingers into her vagina. You only stopped when she told you that it was really hurting her. At that stage, you became upset that you were unable to maintain an erection and sat on the edge of the bed crying. You told the victim not to call the police. She told you to leave.
[9] While you dressed, the victim left the bedroom and closed the lounge door and her daughter’s bedroom door. Thinking that you had left the house, she went to her daughter’s bedroom and told her to call the police. You then ran past the victim and into her daughter’s bedroom. You pushed the daughter, who is now aged 17, onto the bed, straddling her. You held the knife in your right hand and repeatedly tried to push it down towards her face. The daughter yelled at you and tried to push you away but you were too strong. The mother managed to pull you off her daughter allowing her to escape from the house. You then pushed the mother into the kitchen before running out of the house.
[10] You told the police that you had gone to the house looking for a male who had given you the fingers. You said that you went into the kitchen and got a knife because you thought the male might have a piece of wood. You said that you went into the bedroom and found a naked female. You admitted putting your hand over her mouth, threatening her with a knife, putting your penis in her mouth, having sexual intercourse with her and performing oral sex on her. You also admitted running into her daughter’s room, getting on top of her and holding a knife to her and telling her not to call the police.
Victim impact statements
[11] Your offending has had a terrible effect on the victims’ lives, none of whom
was known to you.
[12] Victim 1 is now 28 years of age. She is a mother and lives with her long- term partner. Ever since the assault, she has had great difficulty sleeping at night because of her overwhelming fear that this will happen again. She has frequent nightmares about what happened. She is hyper-vigilant and feels constantly unsafe and unable to cope with being alone. Her initial response was to cut her hair off and colour her hair in an attempt to change her physical appearance. She is constantly reminded of your attack by the scars on her neck caused by the knife injury. She is now far less trusting of other people. She has suffered significant psychological trauma and has experienced suicidal ideation. She and her family have moved house four times in the last 11 months because she does not feel safe. Your offending has also affected her relationships with family and friends. She now feels more isolated. She has had to take time off work because of this offending causing her and her family significant financial hardship. The effects of your offending on Victim 1 cannot be underestimated.
[13] Victim 2 is a 39 year old woman who lives with her two daughters. She describes your offending as “horrific”. She says that her life was destroyed the night you entered her house. She felt scared, humiliated and embarrassed after your attack. She was unable to sleep and paced around the house checking to ensure the doors and windows were locked at all times. She feels that her house is no longer a home. She has suffered from recurrent nightmares which she describes as “really intense”. Initially, she was unable to sleep for more than two hours a night. Even now, she can only sleep for about five hours. She feels that she is now unable to walk anywhere and says that she has lost her freedom. She expects that it will take her a long time to recover from the trauma and ongoing fear that she has suffered.
[14] Victim 3 is only 17 years old. She too has been badly affected by your offending. She now avoids going out, even with her sister. She is scared when she
has to go out walking, for example to her study course. She also has to check that the doors are locked before she can go to sleep.
Pre-sentence report
[15] You had only just turned 18 at the time of your offending against Victim 1. You turned 19 in June this year. You are a Tongan citizen and came to New Zealand in 2013 to be reunited with your mother who you had not seen since she left your father when you were three years old. You were brought up by your father and paternal grandmother.
[16] Your father was a strict disciplinarian. You were well regarded in your community in Tonga and have no prior convictions. It appears that your offending was at least partly the result of undesirable associations you formed after coming to New Zealand and your harmful use of alcohol. You told the probation officer that you were heavily intoxicated at the time you committed these offences.
[17] The probation officer reports that you presented as an immature youth and showed genuine remorse. The probation officer considers that you would be eligible for, and would benefit from, offending-related treatment once you have engaged in a literacy programme to support your understanding of English.
Psychiatrist’s report
[18] I have had the benefit of two reports prepared pursuant to s 88 of the Sentencing Act 2002 to assess your likelihood of committing further sexual or violent offending. The first of these is from Dr Krishna Pillai, a consultant psychiatrist. Dr Pillai says that your parents separated when you were four and that you were raised by your father and paternal grandmother in Tonga. Your mother immigrated to New Zealand soon afterwards and you had little contact with her until you moved here two years ago. Your father was very strict and would beat you with sticks for any transgressions. You attended good schools in Tonga and you were a good student. You were described as an acolyte in your local church. You were musical and a keen sportsman. You did not break the law in Tonga and had no problems with the police.
[19] It appears that some of your cousins in New Zealand are members of the Cripps gang. You began to consume alcohol in a binge fashion with these new peers who would pick you up from your home late at night. Your mother considers that your offending is at least partly the result of the influence of these peers. Dr Pillai agrees and considers that it is of paramount importance that you be directed away from the delinquent peer group that has likely influenced your offending behaviour.
[20] You have no history of mental illness or personality disorder. Dr Pillai assesses you as having a moderate to high risk of sexual re-offending within five years. However, Dr Pillai considers that treatment is likely to be successful given your youth, personal strengths, such as sporting and musical ability, and your strong family relationships.
Psychologist’s report
[21] The second report was prepared by Sabine Visser, a clinical psychologist. She also considers that you are at moderate to high risk of sexual re-offending in a similar manner following your release into the community. However, Ms Visser notes that you have not attended any rehabilitative programmes related to your offending and that you indicated that you are motivated to do so. This is recommended to reduce the risk of you re-offending.
[22] In the light of these reports, the Crown does not seek a sentence of preventive detention. Your history suggests that you are a young man who is capable of responding to treatment and turning your life around. I accept that the appropriate sentencing response in your case is a determinate sentence of imprisonment.
Purposes and principles of sentencing
[23] In sentencing you today, I have regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act. The sentence I impose must be sufficient to hold you accountable for the harm you have done to the victims and the community, to promote in you a sense of responsibility for, and an acknowledgement of, that harm. The sentence must be sufficient to denounce your conduct and deter you and others from committing similar offences. I must consider
the need to protect the community from you. I must also assist your rehabilitation and eventual reintegration into the community and I am required to impose the least restrictive outcome that is appropriate in the circumstances. The sentence should be consistent with sentences imposed on others in comparable situations having regard to the gravity and seriousness of your offending and the effect on the victims.
Starting point
[24] The Crown submits that a starting point of nine years’ imprisonment should be adopted for the two offences involving Victim 1 and a starting point of 11 years’ imprisonment for the three offences against Victim 2, uplifted by six months to take into account your offending against Victim 3. This would give a combined starting point of 20 years, six months’ imprisonment. However, looking at the totality of your offending, the Crown submits that the appropriate overall starting point taking into account all six charges should be 17 years and three months’ imprisonment.
[25] Mr Balme submits that a starting point of eight years’ imprisonment should be adopted for the offending involving Victim 1 and a starting point of ten years’ imprisonment for the offending involving Victim 2. Taking into account the offending against Victim 3 and totality considerations, Mr Balme submits that an overall starting point of between 14 and 14 and a half years would be appropriate.
[26] Your offending against Victim 1 involved the following culpability factors identified by the Court of Appeal in the guideline decision of R v AM:1
(a) Premeditation – you wrapped a piece of clothing around your face indicating a degree of premeditation. You also took a knife from the kitchen before entering the victim’s bedroom. There was a degree of premeditation involved.
(b) Violence and home invasion – you used a knife as a weapon during
the attack and pressed this against the victim’s throat with such force
that the handle broke off and the blade became embedded in the
1 R v AM [2010] NZCA 114; [2010] 2 NZLR 750.
victim’s neck. You also put your hands around the victim’s throat, choking her and threatened to kill her. The offending occurred during a home invasion, in the early hours of the morning.
(c) Harm to the victim – I have already referred to the very serious harm you have caused to the victim. She has suffered scarring and serious emotional and psychological trauma that will have an ongoing effect on her.
[27] There are no mitigating features of any of the offending.
[28] I consider that your offending against Victim 1 is at the higher end of USC
band 2 of R v AM and that a starting point of nine years’ imprisonment is appropriate.
[29] Your offending against Victim 2 was more serious. The Crown submits that this offending falls within the middle to upper end of rape band 2 as set out in R v AM for which starting points of between seven and 13 years’ imprisonment are indicated. The Crown submits that a starting point of 11 years should be adopted for this offending. Mr Balme submits that the appropriate starting point for the offending in relation to Victim 2 is 10 years’ imprisonment.
[30] Your offending against Victim 2 involved the following culpability factors:
(a) Premeditation – you admit to having watched the victim’s house. You again used a facial disguise and took a knife from the kitchen. There was clearly some degree of premeditation involved in this offending.
(b)Violence and home invasion – you again used a knife, pressing this against the victim’s throat. You also threatened to kill her. This offending also occurred in the course of a home invasion in the early hours of the morning.
(c) Harm – Victim 2 also suffered significant physical and psychological harm.
(d)Scale of the offending – your offending against Victim 2 involved multiple violations.
[31] Having reviewed a number of broadly comparable cases, I consider that the sentencing range proposed by counsel is appropriate. I adopt a starting point of ten years and six months’ imprisonment for your offending against Victim 2. An uplift of six months’ imprisonment is required to reflect your offending against Victim 3. This brings the starting point for your offending on this occasion to 11 years’ imprisonment giving a cumulative starting point of 20 years’ imprisonment.
[32] This starting point must be adjusted to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of your overall offending. I consider that this is best achieved in your case by making the following adjustments:
(a) Charges 1 and 2 – Victim 1 – seven years and six months’
imprisonment.
(b) Charges 3, 4 and 5 – Victim 2 – nine years’ imprisonment.
(c) Charge 6 – Victim 3 – uplift of three months’ imprisonment.
[33] This results in an adjusted starting point for all offending of 16 years and nine
months’ imprisonment.
Personal factors
Youth
[34] The Court of Appeal recognised in Churchwood v R that youth discounts are appropriate to recognise the vulnerability and susceptibility of young people to negative influences, the neurological differences between young people and adults which make the former more impulsive and the fact that young people have greater
prospects for rehabilitation.2 The Court also noted that long sentences can be crushing for young offenders. I consider that these factors all apply in your case. As noted, you had only just turned 18 at the time of your offending against Victim 1. There is no dispute that a significant discount should be allowed for your youth. The Crown submits that a 15 per cent discount should be allowed for this whereas Mr Balme submits that it should be 20 per cent.
[35] I consider that a 20 per cent discount is appropriate in all the circumstances of your case to reflect your youth. I take into account not only your youth, but also that you were comparatively immature and particularly susceptible to undesirable external influences as a result of your recent relocation to New Zealand. This discount equates to three years and four months and produces an adjusted starting point of 13 years and five months’ imprisonment.
Guilty plea
[36] You pleaded guilty at the first opportunity. You are entitled to the full
25 per cent discount for your guilty plea. This equates to a further reduction of three years and four months’ imprisonment. Rounding down, this results in an effective end sentence of ten years’ imprisonment.
Minimum period of imprisonment
[37] Section 86 of the Act provides that the Court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under the Parole Act 2002 if it is satisfied that this period is insufficient to hold you accountable for the harm done to the victims, to denounce your conduct, to deter you and others from similar offending and to protect the community. I consider that all of these factors apply here. Given the moderate to high risk of you re-offending in a similar way and taking into account the need for you to undergo treatment to ameliorate this risk, I consider that a minimum period of imprisonment is required
for the stated purposes, including the need to protect the community from you.
2 Churchwood v R [2011] NZCA 531.
Sentence
[38] Mr Funaki, would you please stand.
[39] On each of charges 1 and 2, I sentence you to imprisonment for a term of four years, six months. These sentences are to be served concurrently.
[40] On each of charges 3, 4 and 5, I sentence you to imprisonment for a term of five years and five months. These sentences are to be served concurrently with each other but cumulatively with the sentences imposed for charges 1, 2 and 6.
[41] On charge 6, I sentence you to one month of imprisonment. This sentence is to be served cumulatively with the other sentences.
[42] This means that your effective end sentence is 10 years’ imprisonment.
I make an order requiring that you serve a minimum term of imprisonment of five years.
M A Gilbert J