R v Goundar
[2013] NZHC 1097
•9 May 2013
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2012-019-000131 [2013] NZHC 1097
THE QUEEN
v
BENJAMIN NILESH GOUNDAR AND
ASHUMENDRA ROHIT PRASAD
Hearing: 9 May 2013
Counsel: L Dunn for the Crown
M H McIvor for the Prisoner, Goundar
B J Hesketh for the Prisoner, Prasad
Judgment: 9 May 2013
SENTENCE OF DUFFY J
Counsel: M H McIvor P O Box 78 Waikato Mail Centre Hamilton 3240 for the Prisoner, Goundar
B J Hesketh P O Box 19328 Hamilton 3244 for the Prisoner, Prasad
Solicitors: Almao Douch P O Box 19173 (DX GP20023) Hamilton 3244 for the Crown
R v GOUNDAR and PRASAD HC HAM CRI-2012-019-000131 [9 May 2013]
[1] Messrs Goundar and Prasad, you may remain seated until I come to the time where I formally pass sentence on you.
[2] Following trial by jury, you were each found guilty of the following charges:
(i)On the charge of male assaults female, being count 1 in the indictment, in relation to the complainant, L, Mr Prasad, you were found guilty as a principal; and Mr Goundar, you were found guilty as a party to this offence;
(ii)In relation to the victim, A, you were each found guilty as principals of the charge of abduction for the purposes of sexual connection on 29 December 2011 (count 2 in the indictment).
[3] In terms of the order in which the sexual offences that followed the abduction occurred, you were each found guilty as follows:
(i)Mr Goundar, you were found guilty as a principal of the offence of sexual violation by unlawful sexual connection, being oral sex committed by you in the back of the motor vehicle (count 3 in the indictment); and Mr Prasad, you were found guilty as a party to this offence;
(ii)Mr Prasad, you were found guilty as a principal to sexual violation by rape in the back of the motor vehicle (count 4 in the indictment); Mr Goundar, you were found guilty as a party to this offence;
(iii)Mr Goundar, you were found guilty as a principal to sexual violation by unlawful sexual connection, being oral sex committed by you while you were seated on the bonnet of the car, and the complainant was lying across the bonnet; Mr Prasad, you were found guilty as a party to that unlawful
sexual connection by Mr Goundar (that is count 7 in the indictment in relation to the two of you);
(iv)Mr Goundar, you were also found guilty of threatening to kill (count 8 in the indictment). That charge was not laid against you, Mr Prasad;
(v)Mr Goundar, you were found guilty of sexual violation by unlawful sexual connection, being oral sex committed by you at the Hamilton East carpark (count 9 in the indictment); Mr Prasad, you were found guilty as a party to that sexual violation by Mr Goundar at the Hamilton East carpark; and
(vi)Mr Goundar, you were found guilty of sexual violation by rape committed by you at the Hamilton East carpark, which is count 10 in the indictment; and Mr Prasad, you were found guilty as a party to that sexual violation by rape by Mr Goundar.
[4] In all, Mr Goundar, I have calculated that you committed three offences of oral sex and two offences of rape as a principal, and one offence of rape as a party.
[5] Mr Prasad, you were found guilty as a principal of one offence of rape; your guilt in relation to the other five sexual violations was as a party.
[6] Mr Prasad, I note that you were acquitted by the jury on the count alleging anal sex by you at a time when the complainant was lying on the bonnet of the motor vehicle. But I also note that the evidence given at the trial by the complainant and by you was to the effect that you sexually violated her while she was on the bonnet of the motor vehicle by committing an act of vaginal rape. This was said by you in defence against the allegation of anal rape. Whilst there was no count of vaginal rape laid against you in respect of the sexual violation while the complainant was lying on the bonnet of the car, I consider that the act, which you have admitted, forms part of the factual background in which the overall sexual offending occurred.
[7] These are very serious offences. The maximum penalties for these offences are as follows:
(i) Male assaults female – a maximum penalty of two years’
imprisonment;
(ii) Sexual violation by rape and by unlawful sexual connection –
a maximum penalty of 20 years’ imprisonment;
(iii) Abduction – a maximum penalty of 14 years’ imprisonment;
and
(iv)Threatening to kill, which is a charge that relates to you only, Mr Goundar – a maximum penalty of seven years’ imprisonment.
Facts of the offending
[8] As the trial Judge, I am satisfied that the facts of the offending were as follows.
[9] The complainant, A, and her cousin, L, were walking from the central city in Hamilton to their home in the early hours of the morning of 29 December 2011. At the time, A was 15 years old, and L was 17 years old. The two of you were in a motor vehicle, with Mr Goundar driving; and Mr Prasad in the front passenger seat. You drove past the girls, saw them, stopped and offered them a lift in your vehicle, which they refused at first. You drove off but, within a short period of time, you returned and stopped again. You did your best to persuade the girls to accept a lift in your car, on the understanding that you would give them some food and drink and take them home. Some issue has been made about whether there were offers of cannabis and that was something that enticed the girls into the car. They did not accept that when they gave their evidence. In any event, why they got into the car has no relevance to the decision I have to make today. No responsibility or blame can be attached to them for the offending that eventuated.
[10] The girls, when they first got into the car, were seated in the back seat. As you drove around, they started to become scared, particularly once the vehicle turned towards the university in the Silverdale area, and so they began to demand to know where they were being taken. The evidence was clear that it was L who demanded the car be stopped, and that you either took them home, or let them know where they were being taken. The girls were becoming scared and fearful. At that point, you, Mr Goundar, became abusive; you told the girls to “shut up”, in stronger words than those.
[11] Ultimately, the vehicle was stopped at a rural driveway and you both got out of the vehicle to urinate. At this stage, L and A made a plan that they would run from the vehicle and get assistance. A gave L a can of perfumed hairspray to use to protect herself, which shows they were fearful then. The girls got out of the car and when you, Mr Goundar, realised what was happening, you grabbed A. You yelled to Mr Prasad for assistance, whereupon Mr Prasad came around and started pushing L. She had been trying to make you, Mr Goundar, release A from your grasp. L screamed at you both to let A go. She was pushed by Mr Prasad. She endeavoured to push back and, ultimately, Mr Prasad punched her in the face, causing her to fall backwards onto the road. Then, Mr Goundar, you forced A into the back seat of the car, and, Mr Prasad, you then lay on top of her to stop her from escaping. A was screaming and fighting, but she is a slightly built, young 15 year old. There was little she could do to get away on her own. L was calling out from the road for you to release A. Her last view of A was Mr Prasad lying on top of her.
[12] Once L realised she could do nothing further to help A, she ran down the driveway screaming for help. Once she got to the house, she banged on the door, waking the sleeping residents, and yelling: “They are taking my cousin and are raping her”. The Police were then called.
[13] In the meantime, the two of you had driven with A to a secluded lay-by area in Tamahere. Once the vehicle was stopped, Mr Goundar, you left the front seat and got into the back seat of the car; so by then, A was wedged between Mr Prasad and you, Mr Goundar. She was ordered to take her clothes off. When she refused, you both started undressing her. Mr Goundar, you then demanded that she perform oral
sex on you. When she refused, she was hit on the head and screamed at until she realised she had no option but to comply with your direction. Then, you, Mr Prasad, raped her in the back of the car. A said in her evidence that she was asked to assume a number of different positions, and was then ordered to get out of the car and go and lie on the bonnet of the vehicle. She was naked at the time.
[14] Once she was lying on the bonnet of the vehicle, she was again raped by you, Mr Prasad. You admitted this in your evidence, but it is not the subject of a charge. Whilst A was being raped by Mr Prasad on the bonnet of the car, you, Mr Goundar, climbed on to the bonnet of the car, sat there, and ordered A to perform oral sex on you. When A refused to perform oral sex on you, you threatened to kill her; so she did as you directed.
[15] When both of you had finished, she was then ordered to get into the footwell of the front passenger seat of the vehicle. The vehicle was then driven by you, Mr Goundar, with Mr Prasad in the front seat, to the Dey Street, Hamilton East carpark. At the Hamilton East carpark, Mr Goundar, you ordered A to perform oral sex on you. She did this, and then you raped her. After raping her, you ordered her to put her clothes back on. During the course of these violations, Mr Prasad was standing outside the vehicle. You were undoubtedly involved, Mr Prasad, as the jury found you guilty as a party to the sexual violations that Mr Goundar carried out in the carpark.
[16] A had no idea where she was. By this time, it was approximately 6.00 am in the morning and she must have been detained for about four hours. Mr Goundar, you pointed in a particular direction and told her: “Fairfield’s that way”, which is where she was staying at her aunt’s place. She left on foot, crying and distressed. It took her approximately 40 minutes to walk to her aunt’s place at Fairfield. There, she found relatives waiting for her. The victim impact report informs me that they had already been alerted by the Police (as a result of L’s actions) to the fact that A may have been sexually violated, and so she was immediately taken to the Police Station. She underwent a medical examination, upon which she was found to have a tear in her posterior fourchette, which had been bleeding.
[17] When the Police made further enquiries that day, Mr Goundar, you were found hiding under your bed at your parents’ address; and later, Mr Prasad, you were located at your address.
[18] Both of you eventually admitted to having sexual connection with A, but each of you said it was consensual. Mr Goundar, you did not admit to sexual connection by vaginal penetration until trial. You both maintained that the taking away of A and the sexual connections were consensual.
[19] The jury’s verdicts of guilt for both of you on the charge of male assaults female shows that the jury accepted the Crown’s case that before that assault occurred, you had both set out on a joint unlawful enterprise to commit the crime of abduction of A, and that the assault on L was committed in the course of carrying out this joint enterprise. Thus, the criminal conduct of both of you commenced before the assault on L occurred, and at the time when A was first restrained from leaving the car.
Victim impact statements
[20] In terms of the victim impact statements, which I have read, I note that there is no victim impact statement directly from A. However, her mother has provided a victim impact statement that describes the impact of the offending on A’s family members, including her mother and the impact on A herself. Her mother says that A has tried to hide a lot of emotions and tends to have the attitude of just wanting to forget it all and not talk about it. Her mother says that a part of the A that she knew was taken that day and still has not returned. Weeks after the ordeal, A is said to have suffered very low self-esteem, not wanting to talk to anyone, to have appeared dazed at times, with low energy, confining herself in her room and being emotionally depressed.
[21] A’s mother and A’s elder brother have also been detrimentally affected by
what you did to A.
[22] L has described the impact of the offending on herself. She has referred to the physical injuries she suffered of a blood nose and a cut under her eye, and the emotional harm. She says she felt scared. She describes herself before the incident as being a strong, outgoing person, but says since the offending, she has changed. She no longer feels as confident or as strong as she used to. She has lost her trust in people, and she does not feel comfortable talking to people she does not know. She feels that you took her cousin away from her, as she knew at the time something bad was going to happen but there was nothing she felt that she could do to help A.
Personal circumstances
[23] I now turn to consider your personal circumstances.
Mr Goundar
[24] Mr Goundar, you are aged 24 years.
Prior Convictions
[25] You have relevant previous convictions in terms of male assaults female in
2011, contravening a protection order in 2011, and male assaults female in 2012, which is an offence for which you were convicted after the offending for which you are now being sentenced.
[26] I note you have no previous convictions for sexual offending.
Pre-Sentence Report
[27] Mr Goundar, your pre-sentence report shows your prospects to be dismal. You are assessed as being at a high likelihood of re-offending, given the entrenched nature of your behaviour and beliefs. The pre-sentence report writer has concluded that you are reasonably undeterred by legal sanction, and your willingness to comply with Court imposed sanctions and your current motivation to change is assessed as being low. I consider you have shown no remorse for the offending. I have taken into account what your counsel has said today. But I consider that the reference in
the pre-sentence report to you “feeling sorry for the girl” is not a genuine indication of remorse, when it is placed in context with the other remarks you made to the pre- sentence report writer, and to the way you gave evidence in this Court. I consider, as did the pre-sentence report writer, that you lack insight into your offending. For example, you maintain that A was consenting to the sexual activity with you. This suggests to me that you have little or no insight into the effect of your offending on A.
[28] I add to the assessment of the pre-sentence report writer my own observation of you during the trial where, in your evidence, you attempted to sheet home the blame for the offending to Mr Prasad, even though the evidence shows that you were the driver of the vehicle, A’s evidence was that you were the person in control; and you were a principal offender in the sexual offending more times than was Mr Prasad.
Personal circumstances
Mr Prasad
[29] Mr Prasad, I now turn to consider your personal circumstances. [30] You are aged 27 years.
Prior Convictions
[31] You have relevant convictions for: assault in July 2006; assault in November
2009; and assault in April 2010.
[32] I note that, like Mr Goundar, you have no previous convictions for sexual offending.
Pre-Sentence Report
[33] Mr Prasad, the pre-sentence report writer notes that you continue to maintain your innocence, and you believe you did no harm to A. You say you thought she was
about 17 years old. The factors that have been assessed as contributing to your offending are related to sexual arousal, propensity for violence, and offending supportive associates. You still do not accept that you did wrong on the night of the offending, though you have indicated that you are willing to undertake whatever programmes are offered. You are assessed as being at a medium risk of reoffending, though your motivation to change is assessed as being high.
Purposes and principles of sentencing
[34] Mr Goundar and Mr Prasad, in sentencing you today, I must have regard to the purposes and principles of sentencing.
Relevant purposes of sentencing (s 7, Sentencing Act 2002)
[35] Here, the relevant purposes of sentencing are:
(i)To hold you accountable for harm done to the victim and the community (s 7(1)(a));
(ii)To ensure that there is responsibility for, and acknowledgement of, that harm (s 7(1)(b));
(iii) To provide for victims’ interests (s 7(1)(c));
(iv) To provide reparation for harm done by the offending
(s 7(1)(d));
(v)To denounce your conduct (s 7(1)(e)) and to deter such conduct (s 7(1)(f));
(vi) To protect the community (s 7(1)(g)); and
(vii)I should have regard to your rehabilitation and reintegration back into the community (s 7(1)(h)).
Relevant principles of sentencing (s 8, Sentencing Act)
[36] In terms of the relevant principles of sentencing, they are:
(i)The gravity of the offending, including the degree of culpability (s 8(a));
(ii) The seriousness of the type of offence (s 8(b));
(iii) The imposition of the maximum penalty, if appropriate
(s 8(c));
(iv)The imposition of a penalty near to the maximum penalty, if the imposition of such a penalty be appropriate (s 8(d));
(v) Consistency with appropriate sentencing levels (s 8(e)); (vi) The effect of offending on the victims (s 8(f));
(vii)I should impose the least restrictive outcome appropriate in the circumstances (s 8(g)); and
(viii)I should also have regard to your personal, family, whanau, community, and cultural background where rehabilitation is a purpose (s 8(i)).
Aggravating and mitigating factors (s 9, Sentencing Act)
[37] I should also take into account aggravating and mitigating factors.
Aggravating factors of the offending
[38] Here, I find that the following aggravating factors are relevant:
(i) The actual or threatened violence involved in the offending
(s 9(1)(a)).
Mr Goundar, you hit A on the head when you demanded she perform oral sex on you in the back of the car; and later when she refused again to perform oral sex on you while she was lying on the bonnet of the motor vehicle, you threatened to kill her. Throughout the ordeal, her evidence describes both offenders conducting themselves with arrogance and in a threatening manner.
(ii)I consider that the offending involved a degree of premeditation.
Here, the jury found each of you guilty as parties under s 66(2) of the Crimes Act 1961 in relation to the offences where you were charged as parties. As I have said before, that informs me that their verdicts were based on their viewing you as engaged in a joint unlawful enterprise to abduct A, with all the other offending emanating from you carrying out this joint enterprise. This joint enterprise must have commenced before L was assaulted, given the jury’s verdict, convicting you, Mr Goundar, as a party, pursuant to s 66(2), to Mr Prasad’s assault on L.
I accept, however, the argument of counsel for Mr Prasad that prior to Mr Goundar grabbing A when she first attempted to leave the vehicle, there is no strong evidence of premeditation to commit sexual offences. But from the time A was grabbed, the jury’s verdict informs me that it was satisfied that, by then, each of you had embarked on the joint enterprise to take A for the purpose of sexual connection, whether she was consenting to that or not.
I note the sexual offending occurred over a period of four hours. It involved two forms of sexual violation, namely oral sex and rape. A suffered further indignities by requests for her to position herself in different ways while she was sexually violated. She described you speaking to her in derogatory terms, and she described herself as feeling at the time that she was treated like a “rag doll”. Following the abduction and sexual violations, she was left alone in the early hours of the morning to make her way home on foot. At that stage, she was in pain and distressed.
The offending involving L entailed the assault on her and her then being left stranded in the middle of the night in the countryside. She had begged you to leave her cousin alone, and the result was she was punched in the face and left on the side of the road.
Mitigating factors of the offending
[39] I consider that there are no mitigating factors of the offending. Nor do I
consider are there any mitigating factors relating to you as offenders.
Aggravating factors relating to the offender
[40] In terms of aggravating features of the offenders, you each have convictions for less serious forms of assault, though I note neither of you have previous convictions for sexual offending.
Submissions
Crown submissions
[41] The Crown has submitted that given the nature of the offending and the aggravating features, which include:
(a) The degree of premeditation and planning that was present; (b) The degree of violence in relation to A and L;
(c) The vulnerability of both victims in terms of their ages, as compared to your ages;
(d) The harm to the victims;
(e) That this was a pack rape with multiple acts of sexual offending; and the scale of the offending, with multiple sexual acts, was spread over a four hour period;
leaves the Crown to submit that the offending falls within band four of the tariff decision of R v AM [2010] NZCA 114, [2010] 2 NZLR 750, with each of you being equally culpable. The Crown submits that your offending is analogous to that in R v Abdi [2012] NZHC 3134 and R v Bashir [2012] NZHC 3135, which was a sentencing of two prisoners who had been found guilty of a pack rape of one victim. The rape included: premeditation; prolonged offending spread over one night into the next morning; multiple violations; a threat to kill; and the victim being forced to suffer additional indignities. In that case, she was forced to dance naked in front of the men, who had sexually violated her. In that case, Mr Abdi was sentenced to 16 years’ imprisonment for offending of abduction, sexual violation and threatening to kill. Mr Bashir, who was acquitted on a charge of abduction, was sentenced to 15 years for the sexual violation offending.
[42] The Crown seeks a starting point of between 16 and 17 years, with a possible uplift for you, Mr Goundar, to reflect the fact your offending occurred while you were on bail.
[43] The Crown also seeks a minimum period of imprisonment of 50 per cent to reflect the matters provided for in s 86(2) of the Sentencing Act.
Mr Goundar’s submissions
[44] Mr Goundar, your counsel submits that I should take into account your age and the fact the two complainants initially were willing to get into the car. I do not see that as relevant. You had every opportunity to let them go when they made it plain they did not want to stay in the car. L even said to you that if you let them go, they would make no complaint to the Police. Instead, you grabbed A and refused to let her go, calling out to Mr Prasad to deal with L.
[45] I am also asked to take into account your limited criminal history and the fact you are remorseful.
[46] Your limited criminal history is relevant only to whether or not I make any uplift of the starting point in your sentence to reflect that history.
[47] I accept your counsel’s submission that the sentences I impose should be concurrent. Your counsel submits that apart from the violence inherent in the offences of rape, there was no additional violence that warrants recognition. He submits that A was compliant but, in my view, that was in part brought about by your threats and the violence in hitting her when she would not submit to your requests and later in threatening to kill her.
[48] Your counsel submits that a starting point of 11 to 12 years is appropriate. It is also submitted that any issue regarding minimum non-parole is best handled by the Parole Board at the appropriate time.
Mr Prasad’s submissions
[49] Mr Prasad, your counsel accepts that the tariff case of R v AM governs the sentencing approach that I should take. Your counsel also accepts that a pack rape can fall within band four of the tariff decision, although he has tried to persuade me that in other respects, your offending falls within band three. He submits that taking all matters into account, an appropriate starting point is 14 years’ imprisonment, which he contends reflects the aggravating features of this offending. He asks for a
discount to reflect the jury’s not guilty verdicts on the charge of anal rape and injuring with intent. But I do not see why such a discount should be given. This is not a case where it can be shown that but for those offences, you would not have gone to trial.
[50] Your counsel submits that any issue regarding minimum non-parole is best handled by the Parole Board at the appropriate time.
Tariff Case: R v AM
[51] Offending such as this is subject to the tariff guidelines in the Court of Appeal’s decision in R v AM. This judgment applies to all rape sentencing taking place after 31 March 2010 (at [125]). In R v AM, the Court of Appeal recognised that the new guidelines would alter previous sentencing levels, saying at [33]:
We anticipate that under the reformulated guidelines, some offenders (particularly those whose offending was not characterised by aggravating features) may receive lesser sentences than would be imposed under the current practice, while others will receive longer sentences. That is an intended effect because the objective is to ensure properly graduated sentencing and avoid the current clustering of sentences around the eight- year mark. Overall sentencing levels should not change appreciably.
[52] Accordingly, it is not useful to compare the present offending with cases that pre-date R v AM. To do so defeats the purpose of the guideline judgment, and could result in a sentence that is out of step with that guideline judgment. The pre R v AM cases are only used by reference to guidelines set out by the Court of Appeal, rather than on a purely comparative basis: see [91] of the judgment.
[53] In R v AM, the Court of Appeal sets out four bands of offending for rape and analogous sexual offending, and three bands for other types of unlawful sexual connection. For each band, the Court describes the features of the offending which might be present at the lower and higher end of the band.
[54] Rape within band one will attract a sentence of six to eight years' imprisonment where aggravating features are either not present, or present to a limited extent only.
[55] Rape in band two will attract a sentence of between seven to 13 years’ imprisonment. This will be where there are two or three aggravating features present: a moderate scale of offending; levels of violence and premeditation covering offending involving a vulnerable victim, or an offender acting in concert with others, or some additional violence.
[56] Rape in band three attracts a sentence of between 12 to 18 years’ imprisonment. The aggravating features will be at a serious level. The offending will involve two or more of the factors increasing culpability to a high degree where there is a particularly vulnerable victim and serious additional violence, or more than three factors to a moderate degree. This includes particularly cruel, callous, or violent single episodes of offending involving rape.
[57] Rape in band four attracts a sentence of between 16 to 20 years’ imprisonment. Aggravating features are of a similar type to the higher levels of band three, but involve multiple offending over a considerable period of time, rather than a single instance of rape. Repeated rapes of one or more family members over a period of years, especially when involving children and teenagers, will attract a starting point at the higher end of band four. Gang or pack rape will also likely fall within band four.
[58] In R v AM, the Court of Appeal identified the following aggravating features:
(i)Planning and premeditation, which I consider is a relevant feature here, to some extent, for the reasons I have already mentioned regarding the verdicts on the s 66(2) party offences.
(ii)Another aggravating feature is violence and detention. This is relevant as regards the abduction and then the continued detention of A. Violence is inherent in the offence of rape, but “more than mild” associated violence will increase culpability. Violence can include physical threats. Abduction may also increase culpability, and the seriousness increases as the length
of detention increases. In this case, there is the abduction of
A, plus the blows to her head and the threat to kill
(iii) Another aggravating feature is the vulnerability of the victim.
I consider that here, there is vulnerability over and above that which would normally follow in a situation where a woman finds herself with a group of men intent on raping her. Here, the victim was a slight 15 year old.
(iv) Another aggravating feature is harm to the victim.
I have no victim impact report from A. However, the report from her mother informs me that the offending has had a serious impact on her, though the harm that she has suffered was, in my view, nothing other than what is inherent in the offending of rape.
There is also here the harm suffered by L, though that is not a matter to be taken into account in the assessment of which tariff band to place the starting point here.
(v)Another aggravating feature is multiple offenders, and here this is relevant.
The Court of Appeal noted gang or pack rape may fall within the highest rape band, despite the absence of other aggravating factors. The role and the extent of participation by each offender will be relevant in assessing individual culpability.
In this regard, I consider that there is a proper basis for distinguishing between the culpability of both of you. In this respect, I do not accept the Crown’s submission that each of you are equally culpable. In your case, Mr Goundar, there is the additional violence inherent in the threat to kill; and there
is the fact that you were a principal in five sexual violations, whereas Mr Prasad was a principal in one sexual violation. Also you were the person, who, while Mr Prasad was engaged in raping A, joined in the violation by forcing her to commit oral sex on you at the same time; this also being the occasion when you threatened to kill her when she initially resisted your demands. So I consider, Mr Goundar, that your culpability warrants recognition as being more serious than that of Mr Prasad.
(vi)There is the scale of offending. This is relevant to the extent that A was detained from approximately between 1.00 am and
2.00 am in the morning until 6.00 am and over this period of time subjected to multiple sexual violations.
[59] So it seems to me that here, there are at least four, and perhaps five, aggravating features.
Relevant cases
[60] Although R v AM states that the tariffs set in previous cases are less relevant now, one case that did feature in R v AM is R v Koroheke CA189/01, 28 November
2001, which was an example of a case that should be seen at the lower end of band four. The case involved a group of offenders, who were gang members, who went to a house where the victim and an older woman lived. By a ruse, they tricked the older woman to leave, so that the young victim would be alone. The offenders then forced the victim into a car and drove to the home of one of the offenders.
[61] At the home, she was forced into a double garage, and was subjected to a number of degrading acts. She was forced to masturbate herself in front of the gang members. There were multiple sexual violations, which lasted a period of two and a half hours. She was forced to perform oral sex on four offenders, and her vagina was penetrated by a hammer handle. There were also two attempts at penile penetration.
At some point during the attack, the offenders stood around the victim chanting “sieg heil”, and barking like dogs while they watched.
[62] The Court of Appeal considered that an end sentence of 16 years’ imprisonment was appropriate. The Court of Appeal in R v AM confirmed this case as representing a classic case for band four offending, stating (at [111]):
In Koroheke, the planned abduction, high degree of degradation, youth of the complainant, and the active involvement of multiple offenders makes the offending both brutal and particularly humiliating and degrading.
[63] Abdi and Bashir, which I have already mentioned, I consider are comparable to the offending here. In Abdi, Mr Abdi’s offending was seen to come within band four, and a sentence of 16 years’ imprisonment was imposed, with a minimum period of imprisonment of eight years; and for Mr Bashir, a sentence of 15 years imprisonment’, with a minimum of seven and half years’ imprisonment was imposed.
Analysis
Mr Goundar
[64] Mr Goundar, in terms of applying the relevant legal principles to your offending, I consider the lead offences to be the rape charges. I consider that there are enough aggravating features, in addition to the fact that this was a pack rape, to place your offending in band four of R v AM. The main aggravating features are:
(i) The premeditation and forced abduction; (ii) The continued detention of the victim; (iii) The prolonged nature of the offending;
(iv)The multiple violations, particularly those carried out by you as a principal offender;
(v)The threat to kill the victim if she did not comply with your wishes; and
(vi)There was the extra indignity and humiliation the victim had to suffer while being forced to lie across the bonnet of the car naked, while she was being raped by someone, and of having you come along and force her to carry out oral sex on you.
[65] I consider that here, the offending is equal to that carried out by Mr Abdi. I consider that your offending, Mr Goundar, ought to be placed at the low end of band four. I consider, therefore, the starting point should be one of 16 years’ imprisonment.
[66] As the totality of this offending is interrelated and so has been taken into account in choosing a starting point, there will be no uplift for the other offending. Whilst your previous criminal history and offending on bail might be thought to warrant an uplift, I consider that in terms of the totality principle, a sentence of imprisonment of 16 years is appropriate.
[67] There are no discounts in this case, which means there are no adjustments, and so that leaves a final sentence of 16 years’ imprisonment.
Mr Prasad
[68] Mr Prasad, I have said that I considered your culpability to be less than that of Mr Goundar. This is because apart from one offence of sexual violation, your participation in the sexual violations was as a party. Also, there is no evidence to suggest that in terms of the group sex that occurred on the bonnet of the car, that you had any idea that Mr Goundar was going to intervene in that way before he did so. I have placed Mr Goundar’s offending at the bottom end of band four. I cannot impose a lower sentence on you, Mr Prasad, that fits within that range. However, I note that in terms of band three, there is an overlap, as the sentencing tariff there extends from 12 to 18 years’ imprisonment.
[69] I consider that for you, Mr Prasad, it is appropriate to adopt a starting point of
15 years’ imprisonment, which places you on band three, but which reflects the seriousness of your offending, while distinguishing it from the seriousness of Mr Goundar’s offending.
[70] Because I think that 15 years properly reflects the seriousness of your offending in terms of the totality principle, I do not propose to make any uplift. Nor is there any available discount for mitigating factors. This leaves an end sentence of
15 years’ imprisonment.
Minimum period of imprisonment: Sentencing Act, s 86
[71] I now turn to consider whether or not there should be a minimum period of imprisonment.
[72] If an offender receives a determinate sentence of imprisonment of more than two years, the court may order that the offender serve a minimum period of imprisonment, which is a minimum period that is longer than the one-third of the length of the sentence, which is the default period under the Parole Act 2002.
[73] The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient either to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or protect the community.
[74] A minimum period of imprisonment must not exceed two-thirds of the full term of the sentence.
[75] The purpose of the imposition of minimum periods of imprisonment has been stated in R v Brown [2002] 3 NZLR 670 (CA) at [28]:
[Section 86] provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk. It enables the Courts to give a degree of reality to the sentence and the outcome.
[76] The central consideration is the offender’s level of culpability, which is increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences: see R v Brown at [32]. The sentencing considerations in ss 7, 8, and 9, including the circumstances of the offender, are relevant in fixing a minimum period of imprisonment: see R v Brown at [27]; R v Nguyen [2009] NZCA 239; R v Gordon [2009] NZCA 145; R v Walsh (2005) 21
CRNZ 946 (CA).
Analysis
[77] There is no doubt that offending that can be placed in the upper end of band three or the lower end of band four of R v AM is inherently brutal and callous. The question is whether the one-third default minimum is insufficient to hold the offender accountable for the harm done, denounce the conduct, deter the offender or protect the community.
[78] On the basis of what has been revealed in the pre-sentence reports in terms of the lack of insight into your offending, the lack of remorse and the insistence that A consented to the sexual activity, these are factors that would indicate to me that a one-third minimum is not enough. These attitudes are dangerous for society, and they indicate that you are not likely to accept responsibility for what you have done and to not re-offend in the future, if released after only serving one-third of the sentence.
[79] I consider that the gravity of the offending is such that a one-third minimum parole period will not be enough.
[80] At the same time, I note that both of you are young. Both of you have family support. In that regard, your circumstances can be distinguished from those of Mr Abdi and Mr Bashir, who did not have any support.
[81] I consider that whilst I should impose a minimum period of imprisonment, I
do not need to impose something at the 50 per cent level.
[82] Instead, I propose for you, Mr Goundar, to impose a minimum period of imprisonment of six and a half years.
[83] As for you Mr Prasad, your pre-sentence report also reveals a lack of insight into the seriousness of the offending. You also display a lack of remorse. But I note that the pre-sentence report writer has assessed you as being at medium risk of reoffending. I need to balance that against the other factors.
[84] I think that a minimum period of imprisonment should be imposed, but one that is little more than what the parole period would be; and so I intend to impose five and a half years’ imprisonment as a minimum period.
[85] Mr Goundar, and Mr Prasad, would you please stand.
Result
[86] Mr Goundar, on the sexual violation offences, you are sentenced to 16 years’ imprisonment for each offence – these sentences are concurrent – with a minimum period of imprisonment of six and a half years. On the abduction offence, you are sentenced to 12 years’ imprisonment. On the offence of threatening to kill, you are sentenced to five years’ imprisonment. On the offence of male assaults female, you are sentenced to one year imprisonment, and I repeat all sentences are to be served concurrently.
[87] Mr Prasad, on the sexual violation offences, you are sentenced to 15 years’ imprisonment for each offence, with a minimum period of imprisonment of five and a half years. On the abduction offence, you are sentenced to 12 years’ imprisonment. On the offence of male assaults female, you are sentenced to one year’s imprisonment; and again, I repeat, your sentences are to be served concurrently.
[88] Stand down please
Duffy J