R v Maaka
[2022] NZHC 3240
•5 December 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-085-443
[2022] NZHC 3240
THE KING v
TED MAAKA
Hearing: 5 December 2022 Appearances:
R E Harcourt and J L Garden for Crown
P H Mitchell and D W E Dowsett for Defendant
Sentencing Date:
5 December 2022
SENTENCING REMARKS OF McQUEEN J
Introduction
[1]Mr Maaka, please stand.
[2] On 30 September 2022, you were convicted by jury trial on one charge of sexual violation by unlawful sexual connection,1 four charges of sexual conduct (by sexual connection) with a young person (including one representative charge)2 and one charge of sexual conduct (by indecent act) on a young person.3 You are now to be sentenced on those charges.
1 Crimes Act 1961, ss 128(1)(b) and 128B(1); maximum penalty 20 years’ imprisonment.
2 Section 134(1); maximum penalty 10 years’ imprisonment.
3 Section 134(3); maximum penalty seven years’ imprisonment.
R v MAAKA [2022] NZHC 3240 [5 December 2022]
[3] In sentencing you today, I will first describe the nature of the offending. I will then outline the approach that is taken in assessing a starting point for offending of this kind. I will then address discounts from the starting point arising from any matters that are personal to you. Finally, I will consider whether a minimum period of imprisonment should be imposed.
[4] The sentence I fix today must be in accordance with the principles and purposes of the Sentencing Act 2002. Those that are relevant in your case include: the need to hold you accountable; to promote in you a sense of responsibility for the harm that you have caused; to denounce your offending; and to deter you and others from similar offending. Your rehabilitation and reintegration are also relevant in fixing the end sentence. The law requires me to impose the least restrictive outcome that is appropriate in the circumstances.
The offending
[5] Your offending arose all in relation to the same victim, with whom you had a sexual relationship. At the time she was aged between 13 and 15. You were 19 when you first met, and 22 when the sexual relationship ended.
[6] You met for the first time, late one night when both of you were in Wellington. You asked the victim if she wanted to go for a walk with you to find a cigarette, and she agreed. You then walked the victim to a secluded entranceway off the street. While in this entranceway, you grabbed the victim’s bottom and attempted to remove her trousers.
[7] Following this incident, the two of you began a sexual relationship. I accept that this sexual relationship began from the time when you first met in town (sometime after the victim’s thirteenth birthday in March 2018) and continued until April 2019. That is the time period for which the representative charge of sexual connection with a young person relates. However, during that near 13 month period, you were in and out of custody for approximately six months. As a result, your sexual relationship with the victim was on and off during this period.
[8] In April 2019, you went to prison until early January 2021. Upon your release from custody your sexual relationship with the victim recommenced. During this time, you inserted a tampon into the victim’s anus, on two occasions. On both occasions, the jury held that the act was either consented to by the victim, or you reasonably believed that the victim consented.
[9] On or about 22 February 2021, you had consensual penetrative sex with the victim for the final time before your arrest on the charges.
[10] The most serious offending for which you have been convicted also occurred towards the end of your sexual relationship with the victim. You told the victim that you wanted to “fuck her face”. The victim said she was unsure what you meant. You then inserted your penis into her mouth. During this incident, the victim felt like she was choking. As sentencing judge, it is my responsibility to set out what I find to be established on the facts, provided that this is not inconsistent with the verdict of the jury.4 I find that, on the facts, it is proven that while the victim consented to the act at first or you reasonably believed that she was consenting, the victim withdrew her consent over the course of the act and you no longer had a reasonable belief that she consented to the act. I accept that she told you to stop, but you proceeded to keep your penis in her mouth and told her to “do it properly”. It is from this incident that the charge of sexual violation by unlawful sexual connection arises.
Victim impact statement
[11] The victim has provided a statement for the Court. In the statement, she talks about the impact you have had on her life. She says that your behaviour has caused her to always question her self-worth. The offending has impacted her ability to trust people and to maintain relationships. She has anxiety and says she has struggled to move on with her life. The victim is clearly scared of you. She seeks for a protection order to be made against you.
4 See R v Lunjevich [2012] NZCA 454 at [9]; and B(CA58/16) v R [2016] NZCA 432 at [75]–[76].
Starting point
[12] I turn then to consider the appropriate starting point for your offending. I consider that it is appropriate to take a concurrent approach to your sentencing. Your offending is all connected to and concerning your relationship with the victim, albeit an on and off relationship, over a near three-year period. Accordingly, I will set the starting point for your most serious offending, sexual violation by unlawful sexual connection, as the lead offence. I will then uplift for your remaining offending to reflect the totality of your offending.
Sexual violation by unlawful sexual connection
[13] The Court of Appeal has issued a guideline judgment, R v AM, which applies to the sentencing of sexual violation offending.5 The Court of Appeal established two sets of bands of offending; one where the lead offence is rape, penile penetration of the mouth or anus or violation involving objects, and one where another form of unlawful sexual connection is the lead offence.6 Your offending, involving the penetration of the victim’s mouth by your penis, falls into the first category. The bands, and the sentences applicable to each are as follows:7
(a)Band one: six to eight years’ imprisonment;
(b)Band two: seven to 13 years’ imprisonment;
(c)Band three: 12 to 18 years’ imprisonment; and
(d)Band four: 16 to 20 years’ imprisonment.
[14] In order to assess the appropriate band within which your offending fits, I turn to consider all relevant circumstances and features of the offending.
5 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
6 At [65].
7 At [90].
[15] I accept that there are two aggravating factors present to a low degree, namely the degree of violation experienced by the victim and her vulnerability. I note that the offending clearly has had an impact on the victim. However, it appears from her statement provided to the Court that it was the relationship as a whole, which was clearly toxic and tumultuous at times, that has had the greatest impact on her.8 I do not take the impact of the offending on the victim as an aggravating factor that warrants a higher starting point than otherwise.
[16] In R v AM, the Court of Appeal noted that where no aggravating factors are present, a starting point at the bottom end of band one is appropriate. Where one or more of these factors is present to a low or moderate degree, a higher starting point within the band is required.9 I also note that the Court indicated that band two may typically be appropriate for offending involving a vulnerable victim.10 Finally I note that determining what band in which your offending falls requires the Court to take an evaluative, rather than mechanistic, approach.11
[17] However, there is also the element of withdrawal of consent. Your counsel refers to two helpful cases:
(a)Crump v R:12 in that case, the offender was having consensual penetrative sex with the victim, when the victim withdrew her consent. The offending was a brief period between the offender realising the victim had (or might have) changed her mind and ceasing penetration.13 The Court of Appeal considered that the appropriate starting point for this offending was two years and three months’ imprisonment.
(b)R v Greaves:14 the offender and victim were engaged in “sexual intimacy” short of intercourse. The offender then began to have sexual intercourse with the victim. The victim told him to stop, but he did not
8 It does not identify “enduring effects attributable to the [act of sexual violation]”: see Crump v R
[2020] NZCA 287, [2022] 2 NZLR 454 at [104].
9 At [93].
10 At [98].
11 T(CA131/2018) v R [2018] NZCA 481 at [15].
12 Crump v R, above n 8.
13 At [103].
14 R v Greaves [1999] 1 Cr App R (S) 319.
until the act of sexual intercourse was completed. On appeal, his sentence was reduced to 18 months’ imprisonment. The judgment does not specify the starting point that was adopted in that case, however, it is cited in R v AM as a case that may fall outside the bottom of the band because of its unusual fact pattern.15
[18] Taking into account both the aggravating factors present in this case and the impact of the withdrawal of consent on the appropriate sentence, I adopt a starting point of four and a half years’ imprisonment for this charge. I note this is below rape band one in R v AM and higher than that assessed in Crump. I consider this is appropriate.
Sexual conduct with a young person
[19] I turn then to the four charges of sexual connection with a young person. Both the Crown and your counsel have referred to a number of cases where offenders have been sentenced for sexual connection with a young person as the only offence,16 or the most serious offence.17
[20] And as they said, compared to those authorities, the age gap between you and the victim was significantly less.18 However, your sexual relationship persisted for a relatively long period of time. You engaged in full penetrative sex on a number of occasions. I consider that a starting point of two and a half years’ imprisonment for the offending, if considered discretely, would be appropriate.
[21] However, as I have indicated, I consider taking a concurrent approach to sentencing is the right approach here.19 In taking this, I consider that an uplift of one year is appropriate and adequately reflects your culpability in the circumstances.
15 R v AM, above n 5, at [96].
16 R v Stacey [2008] NZCA 465; R v Johnson [2010] NZCA 168; and R v H [2008] NZCA 237.
17 Williams v R [2019] NZHC 768.
18 See R v Stacey, above n 16 (12 year age difference); and Williams v R, above n 17 (15 year age gap). In both cases, the Judge reached a starting point of two and a half years’ imprisonment on the charge. On appeal, the appellate courts commented that this starting point was within range but could have been higher.
19 See R v Fowler [2016] NZHC 482, at [40].
[22] I consider no further uplift is necessary to take into account the sexual conduct by indecent act charge.
[23] Accordingly I reach a total starting point of five and a half years’ imprisonment.
Personal factors
[24] The Court has been provided with several reports that paint some of the picture of your upbringing and the Crown and your counsel have both referred to these.20
[25] You are 23 years old and whakapapa Māori, although you do not have close connections to your Māori culture. Your life has been impacted by considerable hardship. You have been exposed to poverty, violence, gangs, drug use and offending from a young age. I do not consider it necessary to discuss, in detail, the traumatic experiences you have gone through. However, to summarise, you have been subject to physical, mental and at one stage sexual abuse, from a young age. You have been surrounded by violence, alcohol and drugs, and criminal behaviour your whole life. Using violence as a way to resolve conflict was viewed as normal and acceptable. In light of this, it is unsurprising that you yourself began smoking marijuana at nine, and soon after that engaging in criminal behaviour. You have a significant criminal history, but no previous convictions for sexual offending.
[26] You do not have significant family or other pro-social support. You were moved between various caregivers who struggled to deal with your increasingly anti- social behaviour before you were moved to a boarding school. Your anti-social behaviour continued, and you were moved to a boys’ home. You ran away from there and from the age of 16 began living on the streets. Since then, you have been stuck in a cycle of incarceration, homelessness, partying, drug use and offending. You have reported that you would get into relationships with people in order to meet your immediate needs of food and shelter. The reports indicated that the lack of pro-social guidance in your life has affected your capacity for rational decision-making and use
20 A pre-sentence report, psychological report and a s 27 cultural report.
of pro-social coping strategies, and has led to you forming unhealthy attachments and relationships with others.
[27] While you do not deny that you were in a sexual relationship with the victim, you say you did not know her age and thought she was a similar age to you as she was also engaging in similar activities to you. You adamantly deny ever sexually violating her.
[28] You say you are willing to engage in any rehabilitation efforts necessary. The pre-sentence report indicates that you would benefit from longer term oversight and rehabilitative intervention to address your offending and reduce your likelihood of reoffending and harm to the community. It is recommended that you be engaged with extensive support services post release. The cultural report provided notes that long term employment may provide you with access and exposure to pro-social adults and alternative lifestyles, as would engaging in sport and other recreational activities.
Discounts
[29] I consider that a discount is appropriate to recognise your youth, and also the deprivation that you have suffered.
[30] You were aged between 19 and 22 when the offending occurred. The Crown accepts that some discount is warranted for your young age.
[31] In Churchward v R, the Court of Appeal noted that there are three reasons why youth is a mitigating factor. First, young peoples’ brains are not fully developed. This impacts the ability for young people to regulate their behaviour and may reduce their culpability for their offending. Second, young people are seen to have a greater hope of rehabilitation. Third, a sentence of imprisonment may have a harsher effect on young people.21
[32] While you have been in and out of prison since you were 17, you are still young, Mr Maaka. You also have not had the opportunity to mature around pro-social
21 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
influences and I accept that this has hindered your development. I consider your age diminishes your culpability. Both the pre-sentence and psychological reports emphasise the importance of rehabilitating you and you have expressed your own motivation to do that. I do note that the pre-sentence report indicates you have not been able to undergo any rehabilitation programmes whilst on remand and that these may not be available under a sentence of imprisonment.
[33]I consider a 20 per cent discount for your youth to be appropriate.
[34] Where systemic deprivation or social disadvantage is seen to contribute causatively to offending, it will require consideration at sentencing.22 I accept, as your counsel submits, that your very difficult upbringing has restricted your capabilities and choices. The lack of support and close personal connections you have had in your life, as well as the homelessness you have faced from a young age, has evidently caused you to seek out inappropriate relationships, such as with the victim. Further, as the cultural report indicates, violence has been a significant feature of your life. You have also suffered sexual abuse yourself. While the psychological report writer considered at the time that you were assessed you demonstrated a good understanding of consent, I consider that it is likely that your past experience may have impacted what you saw at the time of the offending as appropriate or inappropriate sexual behaviour.
[35] In light of your difficult personal circumstances, I adopt a further discount of 20 per cent.
Minimum period of imprisonment
[36] The Crown does not advocate for a minimum period of imprisonment. I consider a minimum period of imprisonment is unnecessary. The one-third period that you are required to spend in prison before being eligible for parole sufficiently holds you to account for your offending, denounces your conduct and protects the community from you.
22 Zhang v R [2019] NZCA 507,[2019] 3 NZLR 648 at [159]. See also Carr v R [2020] NZCA 357
at [60] and Sio v R [2022] NZCA 337 at [56] (footnotes omitted).
Conclusion
[37] From a starting point of five and a half years’ imprisonment, I reach an end sentence of three years and four months’ imprisonment taking into account discounts of 40 per cent for youth and personal circumstances.
Result
[38] Mr Maaka, I sentence you to three years and four months’ imprisonment. The sentence is to be imposed as follows:
(a)three years and four months’ imprisonment for the charge of sexual violation;
(b)two and a half years’ imprisonment for each charge of sexual connection with a young person, to be imposed concurrent on the sexual violation sentence.
(c)one year’s imprisonment for the charge of doing an indecent act on a young person, to be imposed concurrent on the sexual violation sentence.
[39] I also order that a protection order is made against you, for the victim’s protection.23
McQueen J
23 Sentencing Act, s 123B.
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