R v John
[2018] NZHC 89
•9 February 2018
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CRI-2017-085-690 [2018] NZHC 89
THE QUEEN
v
JOSEPH JOHN
Hearing: 9 February 2018 Counsel:
S C Carter for Crown
I M Antunovic for DefendantSentencing:
9 February 2018
SENTENCING NOTES OF THOMAS J
Introduction
[1] Mr John, you have been found guilty by a jury of the following charges: (a) sexual violation of Victim 1 by rape on 26 May 2016;
(b) sexual violation of Victim 2 by rape on 21 February 2017; and
(c) sexual violation of Victim 2 by unlawful sexual connection on the same day, 21 February 2017.
R v JOSEPH JOHN [2018] NZHC 89 [9 February 2018]
[2] In sentencing you, I will first outline the summary of facts, having heard the evidence at trial. I will then turn to the victim impact statements, your personal circumstances, and the pre-sentence and other reports. I will set a starting point for the sentence before making adjustments to reflect your personal circumstances.
Facts
[3] Victim 1 was about 18 years old at the time of the offending and you were about 22.
[4] You had met on two occasions before the incident and had been in contact through text. On 26 May 2016, you had arranged to see a movie with her. You were in central Wellington, drank some alcohol and looked around some shops. You were unable to see the movie and for a time sat in your car in the carpark of the Arlington Flats in Wellington, drinking, talking and listening to music. You ended up in a carpark in Upper Hutt where you both moved into the back seat of the vehicle. You continued to consume alcohol as you listened to music. Victim 1 removed her shoes to get comfortable.
[5] You tried to kiss Victim 1 but she rejected you, saying she had a girlfriend and did not want to cheat on her. You attempted to kiss her again but she pushed you off. Victim 1 was wearing a dress and you began to remove her underwear. She tried to pull up her underwear, saying, “Get off me, let go of my undies”. You were successful in removing her underwear completely. You pushed her into the side door of the vehicle so she was lying on her back and you raped her. She punched you several times in the head, yelling, “Get off me”. She dug her nails into the skin of your back and was screaming and crying throughout. You asked her, “Why are you crying?”, to which she replied, “You’re raping me”. At some stage Victim 1’s mobile phone began to ring and she asked you if she could answer the phone to contact her mother. At this point, you got off her and she was able to grab her cellphone, kick you in the face, open the car door and run, leaving her shoes and underwear behind.
[6] She ran in her bare feet along the street and knocked on the door of a nearby house. The residents described her as distraught, scared and traumatised. They called the police.
[7] You accepted Victim 1 tried to push you away, yelling and crying and indeed that she told you why she was crying. Victim 1 was not consenting and you knew that. Indeed, you sent her a text the following day, saying you wanted to apologise, you were drunk and sorry, and what you did was not right.
[8] Victim 2 was 16 at the time of the incident.
[9] On the night of 20–21 February 2017, she had been at a party at a friend’s house in Lower Hutt. She was extremely intoxicated when she left around 3.00 am. As she was walking along the High Street, you rode past her on your push bike in the opposite direction. You turned around, got off the bike and walked beside her. You both sat down on the raised pavement and there was some conversation between you both before you pushed her to the ground. You forced yourself on top of her and she was unable to break free. She was telling you to get off her and swearing at you. You put one hand over her mouth, with your arm holding her down, and used your other hand to pull her underpants to one side. You digitally penetrated her. You then raped her while holding both hands over her mouth and nose, so she struggled to breathe. You then got off her and rode away on your bike.
[10] You said you thought she was a prostitute and was consenting, although you were confused as to why she was yelling at you.
[11] Victim 2 had told you she was drunk and indeed that was clear from the CCTV footage of her walking down the road. In the circumstances, you could have been in no doubt that Victim 2 was young, drunk and vulnerable. You took advantage of that vulnerability.
[12] Her distress was evident in the 111 call which was played in Court.
[13] As the Crown has said, an unusual common feature in respect of both sets of your offending is your tendency to be immune to obvious acts of protest and unreasonably claim to believe in consent.
Victim impact statements
[14] Victim 1 describes the emotional harm she has suffered. She abandoned a medical examination following your offending due to the stress and discomfort of the procedure. Her relationship broke up, due in part to the discomfort of having her partner touch her following your offending. She is uncomfortable on public transport because she does not want to be around strangers. She describes retreating from her usually “out there” personality. She initially struggled to sleep and found the Court proceedings very stressful. She felt a weight lifted off her shoulders when you were found guilty and it is testament to her character that she now feels she can be herself, focusing on what she wants to do.
[15] We have heard read today the victim impact statement of the second victim. She has suffered a great deal. She also found the medical examination extremely distressing. She was so traumatised she had suicidal thoughts and the police took her to hospital. She spent time in the youth mental health ward and was prescribed anti-depressant medication. She had nightmares of your offending happening again. She spent some time thinking it was her fault because she was drunk and was so angry that she had been unable to defend herself. She still feels unsafe on her own and takes family with her wherever she goes. She is no longer the carefree and confident person she was. She too found the Court proceedings very stressful. Again, in another testament to character, she realised she wanted to complete her evidence for her own sake and that of Victim 1. Despite the effects of your offending, she considers herself a stronger, wiser person, and wants to take good care of herself in the future.
Personal circumstances
[16] You are 23 years of age. You were somewhere between eight and twelve years old when you and your mother, brother and sister moved from Uganda to New Zealand as refugees. You do not know the whereabouts of your father, and
describe regret at not having a father to guide you. Your family are your main support network.
[17] Prior to emigrating, you experienced being moved from village to village by UN forces to escape civil war. You consider New Zealand to have offered you freedoms and opportunities in a peaceful environment.
[18] Since leaving school, you have spent time completing English Studies and have more recently been employed at supermarkets in the Hutt Valley, mostly on night shifts.
[19] Through counsel you have today apologised to the Court.
Pre-sentence report
[20] The pre-sentence report assesses you at high risk of reoffending and a high risk of harm to others.
[21] The writer considers you to have an attitude of entitlement, negative attitudes towards women, and a lack of insight into your offending and the effect it has had on the victims. You are focused on the consequences of your offending on you. It appears you continue to believe your actions were justified and the victims were willing participants.
Preventive detention
[22] Given the circumstances, the Crown requested me to consider a sentence of preventive detention. To impose preventive detention, I must be satisfied you are likely to commit another qualifying offence, as defined, if released on your sentence expiry date.
[23] I have considered the reports of two health assessors1 as required as against the statutory considerations.2
1 Sentencing Act 2002, s88(1)(b).
2 Section 87(4).
[24] The psychiatrist caveats his report by noting ethical problems with using psychiatric risk assessments to influence punishment when they are intended to assess rehabilitation prospects. He emphasises the inability of risk assessments to provide a likelihood of a particular offender reoffending, saying they can only identify general groups with an elevated risk. In his opinion, actuarial tools may distort risk assessments by depicting an accuracy which is not real, particularly given potential maturation of an offender and treatment opportunities between now and release.
[25] The psychiatrist says you presented with no evidence of mental disorders, sexual deviance, or substance abuse. Informed by the use of actuarial tools3 and clinical judgement, he considers some concern should be held for your level of risk of reoffending.
[26] However, he notes this does not mean you will be of high risk at the point of release from prison and, in his view, it is important you are reassessed post-sentencing as your view of your actions may change once the court procedure is complete. Further, he considers it likely a better understanding of your offending and possible intervention strategies may be revealed through therapeutic treatment in prison.
[27] In conclusion, he says, although there would be justifiable concern for reoffending if you were released unsupervised into the community at present, your risk may be substantially reduced with further assessment and intervention while in prison, particularly around your attitudes to sexuality and sexual function.
[28] The psychologist concludes you have developed a superficial approach to intimate relationships, avoiding emotion and conflict with your family, possibly as a result of your early childhood in Uganda and desire to avoid strong reactions of disapproval from your family.
[29] She found you hold conservative beliefs, thinking women should not dress provocatively or walk home alone. She considered you demonstrated no awareness
of women’s discomfort, tending to be preoccupied with your own needs and perceiving what might be women avoiding conflict, as reciprocity instead. She suggests these factors may explain the conflict between the facts as found convincing by the jury and your version of events, suggesting that when it was no longer convenient to respect the wishes of Victim 1, you chose to ignore her need to obtain your own gratification. In respect of Victim 2, she tentatively suggests you had become preoccupied with having your sexual needs met and expected her to acquiesce.
[30] In her opinion, you could benefit from culturally responsive support during imprisonment and entering a treatment programme to learn to manage your risk. She notes you expressed an interest in attending treatment and you show an ability to focus and persist with goals when motivated to do so. She is nevertheless wary you may pose challenges for treatment. She says you present as able to benefit from intensive treatment programmes, should you be willing to engage with them. She cautions your tendency to impression-manage suggests the effectiveness of such treatment needs to be closely tested.
[31] The Crown accepts that you have not had the opportunity to address your offending and both s 88 reports suggest you could benefit from treatment.
[32] Mr Antunovic submits the level of risk required for preventive detention is not made out, given the views of the assessors that you appear to have the ability to respond to treatment.
[33] Given the information disclosed in the reports, I am not satisfied preventive detention is necessary to protect the community from you. You will spend considerable time in prison, during which many of the concerns the health assessors raise may be addressed via treatment programmes if you are willing. If you fail to do so and concerns about your level of risk remain at the time your sentence expires, I note the Department of Corrections may apply for an extended supervision order.4
Starting point
[34] I turn now to assessing a starting point for the offending. I will set separate starting points for the offending against each victim and then apply a cumulative approach recognising the totality principle.
[35] The guideline sentencing judgment for sexual violation offending is R v AM.5
In setting the starting points, I have taken into account the following aggravating features of your offending:
(a) Violence.6 You held Victim 1 against her will in your car for a short period, you held your hand over Victim 2’s mouth and nose so she could not breath.
(b)Vulnerability.7 Victim 2 was particularly vulnerable because she was young, highly intoxicated and alone in the early hours of the morning. You exploited that; your actions were predatory.
(c) Extent of harm.8 Both victims describe serious emotional harm, and ongoing effects in their day to day lives. Victim 2 was hospitalised and prescribed medication in the immediate aftermath due to suicide risk and depression.
(d)Multiple victims.9 You offended against two separate victims within nine months. This is of real concern, particularly given the police spoke to you about the first offence before you committed the second. I acknowledge this factor can cause difficulties when setting discrete starting points but is a factor to consider when addressing totality.
[36] The Crown submits your offending against Victim 1 sits at the bottom end of rape band two and attracts a starting point of between eight and nine years’
5 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
6 Sentencing Act 2002, s 9(1)(a); R v AM, above n 5, at [38].
7 Sections 9(1)(g) and 9A(2)(a); and R v AM, above n 5, at [42].
8 Sections 9(1)(d) and 9A(2)(b); and R v AM, above n 5, at [44].
9 Section 9(4); and R v AM, above n 5, at [48].
imprisonment. Regarding Victim 2, the Crown submits your offending sits at the top end of rape band two and attracts a starting point of 11 to 12 years’ imprisonment. When subject to the totality principle, the Crown submits an overall starting point of
14 years is appropriate.
[37] Mr Antunovic says the offending against Victim 1 falls within rape band one, and the appropriate starting point is between seven and eight years. For the offending against Victim 2, Mr Antunovic concedes it falls into rape band two but submits the Crown’s suggestion is too high. Bearing in mind the totality principle, he submits an overall starting point of 10 to 12 years is appropriate.
[38] I have referred to a number of comparable cases to determine the appropriate starting points.10 Your offending against Victim 1 falls into the upper end of band one. Cases which sit at the lower end of band two require more aggravating factors to be present. The Court of Appeal in R v AM described band one as follows:
[93] This band will be appropriate for offending at the lower end of the spectrum; that is, offending where the aggravating features are either not present or present to a limited extent. Rape band one is not an appropriate band for offending where the level of violence is serious, the case involves an extended abduction, a victim who by reason of factors such as age (children or elderly persons) or mental or physical impairment is vulnerable or an offender acts in concert with others. Where none of the [aggravating factors] which increase the seriousness of the offending are present a starting point at the bottom end of this band would be appropriate. Where one or more of these factors is present to a low or moderate degree, a higher starting point within the band would be required.
[39] I have referred to the case of R v Takiari, which is referred to in R v AM as falling at the lower end of rape band two, which involved offending with elements of abduction and predatory behaviour, and a vulnerable victim who was forced to face multiple indecencies.11 Other cases cited include elements such as moderate violence and a variety of sexual indecencies, or an extent of vulnerability which are
not present in the offending against Victim 1.12
10 R v Takiari [2007] NZCA 273; R v Anderson CA199/05, 2 November 2005; Galvin v R [2017] NZCA 2; Pule v R [2015] NZCA 154; Simpson v R [2016] NZCA 95; Hutchins v R [2016] NZCA 173; and R v Chetty [2016] NZHC 1957.
11 Takiari, above n 10.
12 For example Anderson, above n 10.
[40] The offending against Victim 1 has similarities to R v Chetty, where a starting point of seven and a half years’ imprisonment was adopted by the High Court.13 In that case, the offender raped an intoxicated and unconscious woman in his car following a night out drinking and dancing. I accept that case incorporates aggravating factors which are not present to the same degree as your case. There are also similarities to Hutchins v R, where a starting point of seven years was upheld for the rape of a young woman whom the offender had offered to drive home following a party.14 In my assessment, your offending against Victim 1 sits on par with Hutchins, and attracts a starting point of seven years’ imprisonment.
[41] Regarding Victim 2, your offending falls at the lower end of rape band two. The Court of Appeal in R v AM described band two as follows:
[98] By comparison with rape band one, this band is appropriate for a scale of offending and levels of violence and premeditation which are, in relative terms, moderate. This band covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence. It is appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree.
[42] I consider Takiari, to which I have already referred, to be broadly similar with the offending against Victim 2. In addition, the more recent Court of Appeal decisions indicate the Crown’s submitted starting point is a little too high. In Galvin v R, the offender abducted a 14 year old girl off the street, dragging her back to his house, raped her and attempted to rape her anally.15 The offending fell at the higher end of band two, due to premeditation, vulnerability, abduction, detention, force, and harm. Also important were the offender’s predatory nature and attempted anal rape. The Court of Appeal confirmed an 11 year starting point as appropriate.
[43] In Pule v R, an offender found the intoxicated victim on the street at night, said he was a bouncer and promised to help her find her friends.16 Instead he took her down an alley and raped her. Aggravating factors overlapped to some degree but
included vulnerability, breach of trust, planning and premeditation, emotional harm
13 Chetty, above n 10.
14 Hutchins, above n 10.
15 Galvin, above n 10.
16 Pule, above n 10.
and physical harm due to lack of protection, and abduction. The Court of Appeal confirmed a nine year starting point.
[44] I also note the case of Simpson v R.17
[45] Regarding Victim 2, there was violence to a low to moderate degree, vulnerability to a moderate to high degree and ongoing emotional harm inflicted. In light of that, and the above authorities, I consider a starting point of nine years appropriate.
[46] If your sentences were to be served consecutively, the starting point would be
16 years. Similar sentences are imposed for far more serious offending,18 making such a sentence out of step with the seriousness of your own. Starting points of even
13 years include greater aggravating factors. In that regard I note the cases of
Kumar v R and Robson v R.19
[47] With those authorities in mind, and applying the totality principle, I consider that for all your offending the appropriate starting point is 12 years’ imprisonment.
Uplift
[48] You have no previous convictions and there is no basis for an uplift.
Personal mitigating factors
[49] Mr Antunovic submits you are entitled to discounts for age and previous good character. Given your lack of previous convictions, the Crown concedes a modest discount is available for previous good character. Any such discount can be modest only in the circumstances where you have offended in a similar manner twice over nine months, and particularly when you were spoken to by police following the first offending. I consider a total discount of six months for your youth and previous
good character is sufficient.
17 Simpson, above n 10.
18 See for example N v R [2017] NZCA 165; F v R [2016] NZCA 611; Roberston v R [2013] NZCA
642; and T (CA221/11) v R [2011] NZCA 203.
19 Kumar v R [2015] NZCA 460; and Robson v R [2015] NZCA 609.
Minimum period of imprisonment
[50] The Crown submits I should impose a minimum period of imprisonment (MPI) of 60 per cent of your sentence. Mr Antunovic says this is too high, and should be reduced on account of your age and background.
[51] MPIs have been imposed in cases involving similar offending.20 I have taken into account the relevant statutory factors.21
[52] Despite the length of your sentence, I consider there remain concerns for holding you accountable, deterring others from similar offending, denouncing your conduct and protecting the community from you should you be released after having served one-third. Having reviewed cases of a similar nature, an MPI of six years is appropriate.
Result
[53] Mr John, please stand. Mr John, I sentence you to 11 years and six months’ imprisonment which I impose in respect of the charge of sexual violation by rape of Victim 2. On the charge of sexual violation by rape of Victim 1 you are sentenced to six years and six months’ imprisonment and on the charge of sexual violation by unlawful sexual connection of Victim 2 you are sentenced to four years’ imprisonment, both to be served concurrently. I order your sentence be subject to a minimum period of imprisonment of six years.
Thomas J
Solicitors:
Crown Law Office, Wellington
20 For example Robson, above n 19.
21 Sentencing Act 2002, s 86.
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