R v Ismail

[2016] NZHC 79

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-005323 [2016] NZHC 79

THE QUEEN

v

MUHAMMAD RIZALMAN BIN ISMAIL

Counsel:

G J Burston and A R van Echten for Crown

D L Stevens QC for Defendant

Sentence:

4 February 2016

NOTES ON SENTENCING OF COLLINS J

Introduction

[1]      Mr   Rizalman,   today   I   am   sentencing   you   for   indecently   assaulting

Ms Billingsley1 in her home on 9 May 2014.2

[2]      When  you  pleaded  guilty  to  indecently  assaulting  Ms  Billingsley  your counsel asked that I refrain from convicting you pending an application for discharge without conviction.  That application has not been pursued.  I therefore convict you of indecently assaulting Ms Billingsley.   That conviction requires a three strikes

warning, which I will give after I have sentenced you.

1      Ms Billingsley’s name is not suppressed following an order made in the Wellington District

Court, Billingsley v New Zealand Police DC Wellington CRI-2014-085-5323, 9 July 2014.

2      Crimes Act 1961, s 135. Maximum penalty is seven years’ imprisonment.

R v ISMAIL [2016] NZHC 79 [4 February 2016]

[3]      In sentencing you, I shall:

(1)       Summarise your offending.

(2)       Explain the impact of your offending. (3)           Summarise your circumstances.

(4)       Explain the starting point I am adopting.

(5)       Explain the adjustments I am making to that starting point. (6)          Explain your end sentence.

Your offending

[4]      In my judgment of 15 December 2015, I explained the circumstances of your offending.  That judgment should be read in conjunction with these sentencing notes. I will now briefly summarise my factual findings.

[5]      You came to New Zealand in September 2013 following your appointment as Assistant to the Defence Advisor in the Malaysian High Commission in Wellington. Your wife and three young children accompanied you to Wellington.

[6]      During the course of 2014, you began to act in strange ways.  You appear on occasions to have become forgetful and disorientated.  You were also observed to be inexplicably drowsy and unable to concentrate.

[7]      In  early  May  2014,  you  purchased  synthetic  cannabis  from  a  shop  on Cuba Street, Wellington.  On one occasion you acted in a sexually inappropriate way to young women working in that shop.  You endeavoured to “pick up” one of those women.   On 8 May 2014, you again appeared to have tried to pick up another woman in central Wellington.  You did not know that woman and she did not appreciate your advances.

[8]      On  9  May  2014,  you  spent  most  of  the  day  in  the  Brooklyn  shopping precinct.  At about 5.30 pm you saw Ms Billingsley.  When Ms Billingsley walked out of a food shop you believed she smiled at you in an inviting way.

[9]      You chose to follow Ms Billingsley.  She did not know you were following her.  You followed Ms Billingsley approximately 400 metres to 500 metres to her home  located  up  a  long  flight  of  steps.     You  waited  outside  the  front  of Ms Billingsley’s home for approximately 30 to  40 minutes.   You say you were expecting to be invited in.   At one point you defecated on a concrete area a few metres from the front of Ms Billingsley’s home.  At this point you removed your trousers and underpants and entered Ms Billingsley’s home knowing she was alone. You entered through the front door which was not locked.

[10]     You went to the kitchen where you removed your jacket.   From there you went to Ms Billingsley’s bedroom.  She was sitting on her bed watching a movie on her laptop.

[11]     There is no dispute that you knocked on Ms Billingsley’s bedroom door and asked to come in.  Ms Billingsley thought you might be a tradesperson doing work for her landlord.  She said words to the effect “yes, come in”.

[12]     When Ms Billingsley saw you entering her room with your pants removed and wearing just your shirt, she acted decisively.   She leapt from her bed and screamed at you to get out.  You then approached Ms Billingsley and grabbed her shoulders.  Your force resulted in the shoulder strap on Ms Billingsley’s dress being torn loose.  Ms Billingsley managed to push you into the lounge area.  A struggle then occurred in the lounge area.

[13]     Ms Billingsley managed to get a knife from the adjacent kitchen area.  You then left the property through the front door.  Ms Billingsley then locked the front door and locked herself in the bathroom and called the police.  In the meantime, a man who lived downstairs responded to the commotion by going up the external stairs to Ms Billingsley’s flat.   By this time you had put your trousers back on.

When  asked  what  you  were  doing  there  you  said  words  to  the  effect  that

Ms Billingsley was your girlfriend.

[14]     The police arrived at 6.55 pm.  You told the police that you had lost your mind and that you did not know what you were doing.  Later at the police station you said that you had met Ms Billingsley at a movie theatre and that Ms Billingsley may have become angry at you when you ate her food.

[15]     You were originally charged with burglary and assaulting Ms Billingsley with intent to sexually violate her.   Those charges were disposed of after you pleaded guilty to the charge of indecent assault.

[16]     You pleaded guilty to the charge of indecent assault because you accepted that:

(1)you  intentionally  grabbed  Ms  Billingsley  by the  shoulders  in  her bedroom;

(2)       at the time you were not wearing any trousers or underpants;

(3)right  thinking  members  of  the  community  would  consider  the circumstances in which you assaulted Ms Billingsley were indecent; and

(4)you  knew  your  actions  would  be  regarded  as  indecent  by  right thinking members of the community.

[17]     The indecent assault in Ms Billingsley’s bedroom is the sole matter upon which you are to be sentenced.  I am very satisfied you had a sexual motive when you followed Ms Billingsley to her home and entered her bedroom.  The Crown accepts, however, that you did not intend to sexually violate Ms Billingsley or force yourself upon her in a sexual sense.  I therefore sentence you on the basis that you assaulted Ms Billingsley in circumstances in which you hoped to engage in a consensual sexual relationship with her.

[18]     In my judgment of 15 December 2015, I explained why I concluded you were in  an  abnormal  state  of  mind  when  you  indecently  assaulted  Ms  Billingsley.3

However, any possible diminished understanding on your part is not a mitigating factor because in all likelihood your state of mind was affected by your voluntary consumption of synthetic cannabis.4

Impact of your offending

[19]     You terrified Ms Billingsley when you entered her home and bedroom on the night of 9 May 2014.  She was a young woman, alone in her home, who was entitled to feel safe and secure in her bedroom.  I have carefully read Ms Billingsley’s victim impact statement.  Plainly, your actions terrified her and she continues to suffer from the trauma of that night.

[20]     Ms Billingsley has asked her victim impact statement be suppressed and I

make an order to that effect under s 27 of the Victims’ Rights Act 2002.

[21]     Understandably, Ms Billingsley is particularly perturbed by the fact you stood outside her home for 30 to 40 minutes, and removed your pants and jacket before entering her bedroom.

[22]     Some may suggest that you picked on the wrong woman because of the very decisive way Ms Billingsley responded to your conduct.  However, those views are misconceived as they do not properly acknowledge that no woman should ever have to endure the terrifying experiences suffered by Ms Billingsley when you breached the sanctity of her bedroom.

Your circumstances

[23]     You have no previous convictions.  Putting aside your clumsy and completely misguided efforts to “pick up” women at the Cosmic Shop on Cuba Street and in central Wellington on 8  May 2014,  you  have led what appears to have been  a

responsible life in the short time you and your family were living in Wellington.  The

3      R v Ismail [2015] NZHC 3216.

4      Sentencing Act 2002, s 9(3).

evidence I have heard leads me to conclude that you were consuming synthetic cannabis in the period leading up to your offending.  At the time, it was legal to consume synthetic cannabis in this country.

[24]     I accept also the evidence that has been presented to me by a senior officer in the Malaysian Army, who has said that you had an exemplary record of service with the Malaysian Army.  Those observations are entirely consistent with the fact that you held a high non-commissioned rank and were appointed to a diplomatic position. Those appointments would not have occurred unless you had an excellent military record. You are now likely to be discharged from the Malaysian Armed Forces when you eventually return to Malaysia.

[25]    I accept also the publicity surrounding your case has had a particularly distressing impact upon your young wife and three children.  They are also innocent victims of your offending.

[26]     Lieutenant   Colonel   Rahman   has   explained   that   your   departure   from New Zealand was in part facilitated by New Zealand officials.  He has also explained that, to your credit, you chose not to contest the application to extradite you back to New  Zealand.     This  responsible  approach  on  your  behalf  has  enabled  the New Zealand judicial system to hear and determine your case much quicker than might otherwise have occurred.

Starting point

[27]   There is no tariff judgment for sentencing for indecent assault.   The circumstances in which an indecent assault may occur can vary quite widely.  Each case hinges upon its own facts.

[28]     The Crown has suggested a starting point of between two years nine months and three years’ imprisonment.   The probation service has recommended you be sentenced to prison.  On the other hand, your experienced counsel has suggested you be punished by me ordering that you make a payment of reparation and that at the most, a 12 month prison sentence is the appropriate starting point.

[29]     I have endeavoured to draw comparisons from other cases.5   While some of those cases have features in common with your case, I have found no case that directly correlates to your offending.  The cases the Crown have referred to have generally involved starting points of between two years six months’ and three years’ imprisonment.

[30]    In my view, there are five key features to your case which I have had to carefully evaluate.

[31]     First, it was your state of undress which made your assault indecent.  This is an unusual feature of your case.   Indecent assaults almost always involve the defendant touching the victim in a sexual way.  That did not happen in your case. Nor did you say anything sexual in front of the victim.  In one case the lack of touching in a sexual manner was relevant to the offending being described as being “at the lower end of the spectrum”.6

[32]     Second, while you used sufficient force to rip Ms Billingsley’s dress strap and grabbed her shoulders with some force, I consider your assault to be at the lower end of the spectrum of assaults.  You grabbed Ms Billingsley’s shoulders to calm her down and there was no indecent touching.

[33]     Third,   I   am   satisfied   that   your   conduct   exhibited   a   high   level   of premeditation.  You had seen Ms Billingsley earlier in the day and mistook a smile for a sexual advance.  You deliberately followed Ms Billingsley to her home and you waited outside her house for a long period of time.   You entered her bedroom because you hoped to have some form of sexual relationship with her.

[34]     Fourth,  your  offending  involved  the  invasion  of  Ms  Billingsley’s  home.

Entering into dwellings at night is relevant to indecent assault cases7 and affects the

5      Penitani v Police [2014] NZHC 1622; R v Ielemia CA405/01, 14 March 2002; R v Wainohu HC Hamilton CRI-2006-019-4772, 16 February 2007; Marie v R HC Invercargill CRI-2010-425-49,

8  March  2011;  Chugh  v  Police  [2015]  NZHC  2356;  Spicer  v  Police  [2014]  NZHC  861;

Yalomatua v Police [2013] NZHC 530; Police v Bygate DC Nelson CRI-2011-042-1096, 30

May 2011; Marshall v Police [2014] NZHC 2681.

6      Smith v R [2012] NZCA 419.

7      R v Mua CA 190/94, 3 November 1994.

sense of security of the whole community.  Ms Billingsley was a vulnerable young woman, who was entitled to feel safe in her bedroom.

[35]     Fifth, you did not leave Ms Billingsley’s home when she screamed at you and told you to leave.  In fact, you did not leave until Ms Billingsley got a knife.

[36]     After  carefully  weighing  these  factors,  I  have  concluded  the  appropriate

starting point is a sentence of two years and three months’ imprisonment.

Adjustments to starting point

[37]     From the starting point of 27 months’ imprisonment I propose to give you a

discount of four months to reflect three factors.

[38]     First, the fact that you co-operated with being extradited to New Zealand to enable your offending to be heard and determined as quickly as possible in the New Zealand judicial system.

[39]     Second, your good character up until the time of this offending.  You are 39 years of age and members of your family have submitted on behalf evidence of your good character and the important role that you play in the family.  Further, you have retained a respected position in society in your placement at the Malaysian High Commission.  I have also taken into account the associated high risk of losing this esteemed position and the likelihood of your career coming to an end.

[40]     Third, you have been subjected to restrictive bail conditions since your return to New Zealand.

[41]     It has been urged upon me that you are entitled to credit for remorse.  You have now written a letter of apology and offered a sum of money as reparation.

[42]     One of the many unique features of this case however was your startling lack of remorse at the time you gave evidence.  When you gave evidence before me, I was struck by your lack of insight into your offending and your lack of appreciation as to the impact of your conduct upon Ms Billingsley.  My observations of you at the

time are borne out by the pre-sentence report that indicates that you show regret, but lack complete lack of acknowledgement of risk associated with your offending.

[43]     It is possible your attitude might be due to your military training or factors that I am not aware of.  I commend you for your letter of apology to the complainant and offer of amends to her as compensation for emotional harm.   It has however been continuously difficult for me to see any genuine remorse for your offending up until this point.  I am not prepared to give you any specific discount for remorse.  I am, however, prepared to give you a further discount of two months’ imprisonment to reflect the offer of reparation you have made to Ms Billingsley.  She has accepted that offer as partial compensation for some of the financial loss and emotional harm she has suffered as a result of your offending.

[44]     I will also give you a further discount of three months’ imprisonment for your guilty plea.   This reflects the principle in Hessell v R.8     It is a discount of approximately ten per cent, acknowledging that although you unsuccessfully contested key facts, you did avoid the necessity for a two week trial.

Final sentence

[45]     A sentence of 18 months’ imprisonment means you are eligible for home detention.   The sentence of home detention provides a real alternative to imprisonment.9   It carries with it the principles of deterrence and denunciation.

[46]     I had initially hoped that a sentence of home detention might be able to be served at the Malaysian High Commission.  For reasons which have been fully explained by the Malaysian Government, that option is not available.  I am, however, grateful to the Malaysian Government for its co-operation in this case and for ensuring you can continue to rent the property where the sentence of home detention

will be able to be carried out.

8      Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.

9      R v Iosefa [2008] NZCA 453.

[47]     A home detention report has been prepared.  It shows that home detention is available.  I will suppress details of the address where you are to serve your sentence of home detention.

[48]    There is no precise mathematical equation which converts a sentence of imprisonment to one of home detention. A sentence may be for such a period “as the court  thinks  fit”.10   However,  it  is  generally  accepted  that  a  sentence  of  home detention equates to about half the sentence of imprisonment that would otherwise be imposed.  I therefore propose to sentence you to nine months’ home detention.

[49]     In order to facilitate your deportation to Malaysia following the completion of your sentence of home detention, I will not impose the standard post detention conditions set out in s 80N of the Sentencing Act 2002.

[50]    Before deciding on the sentence I am about to impose, I have taken into consideration the purposes and the principles of the Sentencing Act 2002.   In particular, I am satisfied that a sentence of nine months’ home detention will:

(1)hold you accountable for the harm you did to your victim and the community;11

(2)promote  in  you  a  sense  of  responsibility  for  the  harm  you  have done;12

(3)       denounce your conduct;13

(4)       deter others from committing the same or a similar offence;14 and

(5)is  the  least   restrictive  outcome  that  may  be  imposed  in  the circumstances of your case.15

10     Sentencing Act 2002, s 80A(3).

11     Section 7(1)(a).

12     Section 7(1)(b).

13     Section 7(1)(e).

14     Section 7(1)(f).

15     Section 8(g).

[51]     Mr Rizalman, can you now please stand.

[52]     On the charge of indecently assaulting Ms Billingsley to which you pleaded guilty  I  am  sentencing  you  to  nine  months’ home  detention.    The  terms  and conditions of your home detention are set out in a written statement that will be provided to you and to your counsel in a few minutes.

[53]     I will now give you the three strikes warning.  If you are convicted of any serious violence offence (except murder) committed after you receive this warning, you will receive a final warning.  In addition, if the Judge imposes a sentence of imprisonment for that offence (other than life imprisonment for manslaughter, or preventive  detention)  then  you  will  serve  that  sentence  without  parole  or  early release.

[54]     If you are convicted of a murder committed after you receive this warning, you will be sentenced to imprisonment for life.  You must serve the life sentence without parole unless it would be manifestly unjust to do so.  If you receive a life sentence without parole, you will not be released from prison if serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.

[55]     A copy of this warning will be provided to you in writing later this morning.

[56]     I also order that you make reparation to Ms Billingsley in the sum which will be set out in the schedule which will be made available to you later this morning.

[57]     You may now stand down.

Solicitors:

Crown Solicitor, Wellington

McWilliam Rennie, Wellington for Defendant

D B Collins J