R v Makavalu

[2013] NZHC 805

NOTE:  PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S

203 OF THE CRIMINAL PROCEDURE ACT 2011. FURTHER ORDER MADE PROHIBITING PUBLICATION OF RELATIONSHIP BETWEEN PRISONER AND VICTIM AND THE ADDRESSES WHERE THE OFFENDING OCCURRED.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-069-002110 [2013] NZHC 805

THE QUEEN

v

MECICAN MAKAVALU

Counsel:         A F Pilditch for Crown

H H Roose for Prisoner

Sentence:       19 April 2013

NOTES ON SENTENCING OF COLLINS J

Introduction

[1]      Mr Makavalu, you have pleaded guilty to five charges:

(1)       A representative charge of sexual violation by rape;1

(2)       Indecent assault:2

1      Crimes Act 1961, s 128(1)(a) and s 128B.

2      Section 135.

R V MAKAVALU HC ROT CRI-2011-069-002110 [19 April 2013]

(3)A  representative  charge  of  sexual  violation  by  unlawful  sexual connection;3

(4)       A representative charge of assault with a weapon;4   and

(5)       Threatening to kill;5

[2]      The  key  issue  I  have  to  resolve  is  whether  I  should  sentence  you  to preventive detention or to a very long finite sentence of imprisonment.

[3]      In addressing this issue I will: (1)        explain your offending;

(2)       explain your history of previous offending;

(3)explain the assessments of you that have been made by a probation officer and two health professionals;

(4)assess your circumstances against the statutory criteria that governs sentences of preventive detention;  and

(5)       explain your sentence.

Your offending

[4]      Your victim of the offences that I am concerned with is [               ].  During the time of your offending she was aged 17 and 18 years old.

3      Section 128(1)(b) and s 128B.

4      Section 202C.

5      Section 306(1)(a).

[5]      On the night of 22 March 2010 your victim was in bed.  She woke to find you lying on top of her, and digitally penetrating her.  She told you to stop.  You did not stop but instead removed her pants and raped her.

[6]      From then on you made sexual demands on a number of occasions and forced your victim to have sexual intercourse with you when you were living together in both [                ].  Your actions caused your victim to become pregnant from a rape that probably occurred in late March 2010.

Sexual violation by unlawful sexual connection

[7]      After the first instance of rape on 22 March 2010 you engaged, on several occasions, in a number of acts of sexual violation against your victim in both [       ]. Your victim cannot recall the exact number of times you sexually violated her.  You have pleaded guilty to one representative charge of forcing your victim to orally engage with your anus, scrotum and penis.

Indecent assault

[8]      On 26 March 2010, the day your victim turned 18, you placed a beer bottle between her legs and kicked it with such force that you caused bleeding to her genital area.

Assault with a weapon

[9]      The fourth charge, which is also representative, relates to various assaults you carried out on your victim when you were living in [          ].  You assaulted your victim with scissors, a pitch fork and a burning cigarette.  These assaults resulted in your victim suffering cuts, bruising, and burns. You also cut off part of her hair.

[10]     On one occasion, when you and your victim were living in [        ] you took the victim into a garage where you formed a noose which was hanging from the garage rafter. You placed a tree stump beneath the noose and told the victim to stand on the stump and put her head through the noose.   When your victim refused to comply you poured petrol over her and threatened to burn her.  You also threatened to make your victim eat fertiliser.  Eventually the victim jumped from the stump with her head  in  the noose.   The noose did  not  support  your victim’s  weight.    She therefore avoided death.   Your victim was, however, extremely traumatised.   She believed her life was about to end.

Related offending

[11]     On 25 May 2010, when your victim was approximately two months’ pregnant you assaulted her causing her two fractures to her jaw and significant bruising to her head and face.  Your victim was hospitalised for two days.  When spoken to by the police your victim told them about some of your offending.  As a result you were charged at that time with:

(1)       assault with intent to injure on 26 March 2010;  and

(2)       injuring with intent to injure on 25 May 2010.

You pleaded guilty to those charges (and a charge of aggravated burglary on 25 May

2010).  You were sentenced to a total of eight and a half years’ imprisonment in the

Hamilton District Court on 30 September 2010 in relation to those offences.6

6      Two years for assault with intent to injure; three years six months (cumulative) for injuring with intent to injure; three years (cumulative) for the aggravated burglary. The criminal and traffic conviction record does not accord with the sentencing Judge’s decision. The Crown has informed me that in fact, contrary to the criminal and traffic conviction record, you were sentenced to a total of eight and a half years’ imprisonment.

[12]     You have 36 previous convictions dating back to May 1988. You do not have any previous convictions for sexual offending.  You do, however, have 22 previous convictions for violence related offences (including those relating to the offences you were sentenced for in the Hamilton District Court on 30 September 2010).  Eight of those convictions have been for assaults against women and one conviction for assaulting a child.

[13]     Your record of previous offences shows a persistent escalation of serious offending involving violence.   This pattern of offending resulted in a sentence of seven years’ imprisonment for wounding with intent to cause grievous bodily harm being imposed in the Wellington District Court on 8 November 2002. This offending was against one of your previous partners.  I understand you served all of that seven year sentence which means your current offending occurred a comparatively short time after you were released from prison.

Pre-sentence assessments

[14]     The key points I have taken from the probation officer’s report are:

(1)You have shown remorse but feel more sorry for yourself than you do for your victim;

(2)       You deny remembering any of your sexual offending, although you

do admit to “disciplining” your victim;

(3)You appear to accept no responsibility for your actions, or for your chronic alcohol and cannabis consumption at the time of your offending;  and

(4)You are assessed as being a high risk of reoffending and of course a potential harm to others.

[15]     Dr Majeed is a forensic psychiatrist.   He has prepared a report pursuant to s 88 of the Sentencing Act 2002 (the Act) to assist me in determining whether or not a sentence of preventive detention should be imposed.

[16]     The key points I have taken from Dr Majeed’s report are:

(1)You told Dr Majeed that you have no memory of committing sexual or violent offences against your victim;

(2)You claim to have pleaded guilty because your lawyer told you to do so and because you do not wish to put the victim through anymore emotional harm or risk of re-traumatisation;

(3)You say your victim has fabricated the incidents of rape.  You even denied committing the offence of injuring with intent to injure which is the offence for which you were sentenced to three and a half years’ imprisonment in the Hamilton District Court on 30 September 2010;

(4)At the time of your offending you had a very heavy dependence upon alcohol and cannabis;

(5)You received drug and alcohol treatment when serving your seven year sentence of imprisonment;  and

(6)On 16 February 1998 you were assessed under the Mental Health (Compulsory Assessment and Treatment) Act 1992 as having a personality disorder, as well as a high degree of alcohol dependence.

[17]     Dr Majeed concluded there was a significant risk of you committing further qualifying sexual or violent crimes, particularly if you relapse into using alcohol and cannabis if you are released from custody.   This assessment was based upon the following factors:

(1)       Your inability to maintain a stable relationship; (2)     Your unstable work record;

(3)       Your history of violence;

(4)       Your history of excessive alcohol consumption and cannabis abuse; (5)        Your anti-social personality;

(6)Your record of having committed the current offences shortly after your release from prison in 2009;

(7)       The number of times you offended against your victim; (8)    The seriousness of your offending;

(9)Your disregard for the emotional and psychological wellbeing of your victim;

(10)     Your failure to truly accept your wrongdoing;  and

(11)     Your apparent happiness with your life in prison compared to living in the community.

Report from Ms Waterton

[18]     Ms Waterton is a registered psychologist.  She has prepared a report pursuant to s 88 of the Act to assist me in deciding whether or not I should sentence you to preventive detention.

[19]     The key points I take from Ms Waterton’s report are:

(1)Her concern about your history of violent offending, and in particular the escalating seriousness  of  your violent  offending over the past

24 years.  Ms Waterton explains:

Mr Makavalu’s offending may be noted for its serious nature from onset, its diversity, and its persistence across time.  The callous nature of Mr Makavalu’s offending is noted to have become increasingly evident over time.   Legal sentences (including   multiple   terms   of   imprisonment)   have   not deterred Mr Makavalu from engaging in violent offending, with later instances occurring despite his engagement in intensive treatment that was completed in April 2007.

(2)Ms Waterton also records that you deny that you committed sexual offences against your victim.  You suggested to Ms Waterton that you could not have committed the indecent assault because there was no evidence of bruising on your victim and because she did not miscarry. You also suggested to Ms Waterton that the incident involving the noose was an attempted suicide and that your victim had accidentally come into contact with the petrol that ended up on her clothing.

(3)Rehabilitative programmes that you have undertaken during your last period of imprisonment did not address the risks that you pose.  At that time further treatment was recommended in order for any meaningful change to occur.  Ms Waterton notes that these treatment interventions did not appear to assist you to reduce the risks that you presented.

[20]     Ms Waterton has used a number of tools to assist in identifying your likely risk of reoffending:

(1)       RoC*Rol measure

The RoC*Rol measure is an actuarial measure developed to assist in predicting an offender’s risk of re-imprisonment within five years of being released.  This measure does not accurately predict the risk of

sexual reoffending.  You were assessed as falling within the group of offenders  who  have  a  moderate  risk  of  general  and/or  violent offending within five years of being released from prison.

(2)      STABLE-2007

The STABLE-2007 methodology assesses factors amenable to change but which tend to persevere for months or years.  These factors have been used to predict the likelihood of sexual reoffending.  You were found  to  be  in  the  high  risk  group  using  the  STABLE-2007 instrument.

(3)      PCL:SV

The Psychopathy Checklist:   Screening Version (PCL:SV) is a structured assessment instrument that provides an estimate of risk of serious reoffending.   This instrument indicated there is a high probability of you committing a serious violent offence within two years of release from custody.

[21]     The summary of the risks assessment undertaken by Ms Waterton recorded:

When considering both static and dynamic risk factors, Mr Makavalu is estimated to be at a high risk of general and/or violent re-offending within five years of release from prison (with a higher probability of a serious violent   offence   occurring   within   two   years   of  his   release   into   the community), and as being at a high risk of sexual offending in the ten years following his release into the community.

If Mr Makavalu were to sexually offend again in the future, this would likely be repeated sexual abuse against an adult familial victim in response to his experience of stressors (eg financial and interpersonal conflict) and in the context of hostility towards females, poor behavioural controls and a propensity for violence.   Offending may initially occur either in an opportunistic or a planned manner (subsequently becoming protracted and vindictive), against a victim in a domestic context.  In addition, the presence of  others  at  a  residence,  or  obvious  signs  of  victim  distress,  would  be unlikely to deter him from sexually offending.  Further sexual offending by Mr Makavalu may cause long term physical (through use of an object such as a bottle) and psychological trauma to a potential victim.   Mr Makalavu may or may not be disinhibited by significant substance abuse.

Finite sentence

[22]     It is necessary to consider the length of the appropriate finite sentence, since the assessment of the risk that you pose must be carried out as at the expiry date of that sentence.   The starting point for the lead offence of sexual violation by rape would be 16 years’ imprisonment.  I assess this offending to be on the cusp of band three and band four of R v AM,7with the following aggravating features:

(1)Violation to a high degree:  the victim endured a number of different sexual violations including rape and unlawful sexual connection.

(2)Vulnerability of the victim to a high degree:   R v AM specifically states that both the young age of the victim and the age disparity between the victim and offender can increase vulnerability.8

(3)Breach of trust:  intra-familial sexual offending involves a breach of trust, which is particularly aggravating here as you are the victim’s [ ].

(4)Harm to the victim:  this offending was extremely traumatic for the victim, especially as it was accompanied by violence or threats of violence,  and  she  genuinely  feared  for  her  safety  if  she  did  not comply with your demands.  Additional harm of pregnancy resulting from rape makes this factor present to a high degree.9

(5)Scale of the offending:  although it took place over a period of months rather than years, the offending was regular and sustained over that period.

[23]     I do not consider this offending fits within the “paradigm” case of band four sexual violation in R v AM.  Although it was repeated intra-familial rape, it did not occur over a number of  years.    However,  the  degree of violence involved, the

pregnancy that resulted and the breach of trust inherent in any sexual violation of a

7      R v AM [2010] NZCA 114.

8      At [42]

9 At [44].

teenager warrants a starting point near the top of band three of R v AM, of 16 years’ imprisonment.10    The starting point sentence should then be increased to take into account the other incidents of unlawful sexual connection and the violent offending against the victim which occurred over the same period.  I consider the total uplift to be applied for the other offending is two years.

[24]     The only mitigating factor is the guilty pleas, which were entered a week before the trial was due to begin.   I consider a maximum discount of 15 per cent could be granted for the guilty pleas, bringing the overall end sentence to 15 years’ imprisonment.

[25]     A complicating factor in this case is that you were already sentenced for some of your violent offending in the Hamilton District Court.  You are currently serving a sentence of eight years and six months’ imprisonment for that offending.  Any finite sentence that I would impose would have to be served concurrently with that sentence.  Therefore, on the starting point that I have reached, that would result in a total finite sentence of 15 years’ imprisonment.

[26]     The length of that sentence must be assessed against the totality principle, contained in s 85 of the Act.  The essence of the principle is that, in arriving at the appropriate  sentence  for  several  offences,  the  sentencing  Judge  must  not  only consider each offence individually, but also assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of his or her conduct.11

[27]     In this situation, the totality principle requires me to step back and look at the offending which occurred in 2010 as a whole, including the offending which has already  been  dealt  with,  and  ask  whether  15  years  reflects  the  gravity  of  the offending, and whether this would be a sentence that I would have reached had I

been sentencing you for all offences together.12    I consider that the sentence I have

provisionally reached withstands a totality check.

10     This is consistent with the starting points in other comparable cases I have considered: Z v R

[2012] NZCA 607; R v Kolio CA219/01, 1 November 2010 and R v S [2007] NZCA 243.

11     R v Bradley [1979] 2 NZLR 262 (CA) at 263.

12     Bowen v R CA64/92, 28 May 1992; R v Nuku [1969] NZLR 343 at 344 and Skelton v R [2011]

[28]     That  means  the  maximum  finite  sentence  that  I  could  impose  for  this offending would be 15 years’ imprisonment.  I would also impose a minimum period of  imprisonment  because  of  the  seriousness  of  your  offending  and  your  low prospects of rehabilitation.   I would impose a nine year minimum period of imprisonment to reflect these concerns.

Should a sentence of preventive detention be imposed?

[29]     You have been  convicted of a qualifying sexual offence.13     None of the violent offences for which you have been convicted and for which you are to be sentenced today are qualifying violent offences.   Because you were over 18 at the time of  your  sexual  offending,  you  satisfy the  criteria  that  must  exist  before a sentence of preventive detention can be considered.

[30]     The next question is whether you are likely to commit further qualifying offences if released at the expiry of the finite sentence, assessed here to be 15 years, unless you are released on parole after serving the minimum period of imprisonment. This calls for the exercise of judgment about the risk that you will present in the future, after imprisonment and such treatment as the prison system offers and you are

willing to accept.14

[31]     Before a sentence of preventive detention can be imposed I must be satisfied: (1)     That you are likely to commit another qualifying offence if you are

released from prison at the sentence expiry date of a finite sentence that I would otherwise impose;15   and

(2)That a finite prison sentence would not be sufficient to protect the public.

NZCA 35 at [33].

13     Section 87(5) of the Sentencing Act 2002 defines a qualifying sexual offence as a sexual crime under Part 7 of the Crimes Act 1981 punishable by 7 years’ or more imprisonment.

14     R v Leitch [1998] 1 NZLR 420 (CA).

15     This would encompass qualifying offences of both a sexual and violent nature, as defined in s 87(5) of the Act.

[32]     In making this assessment I will examine each of the factors set out in s 87(4)

of the Act and apply those factors to your circumstances.

Pattern of serious offending16

[33]     This  factor  requires  me  to  consider  the  frequency  and  duration  of  your current offending, the period of time between your present and current offending, and the overall frequency of your offending.

[34]     Your sexual offending is relatively serious.   Although there was only one victim, your offending was persistent over the entire period that your victim lived with you.

[35]     Your convictions for sexual offending are your first offences of a sexual nature.  Thus, there is insufficient history to establish a pattern of behaviour or of recidivist sexual offender traits.

[36]     However, your history shows a significant pattern of behaviour in relation to violent offences, which has escalated over time and in a substantial number of cases, has  been  fuelled  by alcohol  and/or  drug consumption.   Your offending spans a

22 year period beginning with three charges of common assault in 1987 when you were 16 years old.  This was followed by eight further convictions for male assaults female in 1989, 1993, 1994 (on two occasions), 1996 (on two occasions), 1998 and

2001 for all but two of which you were sentenced to imprisonment. You have further convictions for assault with a blunt instrument (1993), common assault (five times in

1993 and 1994), assault of a child (1994), wounding with intent to cause grievous bodily harm (2002), injuring with intent to injure (2010), assault with intent to injure (2010),  and  finally  the  present  offences,  namely  assault  with  a  weapon  and

threatening to kill.

16     Sentencing Act 2002, s 87(4)(a).

[37]     Your pattern of offending is significant for two reasons:

(1)The most recent violent offences were committed soon after your release from  prison  in 2009.   This shows  a tendency to  reoffend within a short time of the completion of a prison sentence.

(2)Your pattern of offending shows an escalation of serious offending over  time,  with   those  committed  in  the  last   12   years  being significantly more serious than those that were committed prior to

2000.

Seriousness of harm to the community17

[38]    The pre-sentence reports indicate that there is a high likelihood of you reoffending.  As a consequence you pose a serious risk of harm to the community. Most of your offending is committed against former partners or family members, which means any woman in close proximity to you is likely to be at risk of harm following your release.

Information indicating a tendency to commit serious offences in future18

[39]    This assessment focuses on the likelihood, type and seriousness of your reoffending in the future.   It requires me to satisfy myself whether or not you are likely to commit another qualifying offence of a violent or sexual nature.

[40]     The pre-sentence reports indicate a high risk of reoffending in a violent and sexual manner.  The tools used to assess your likelihood of reoffending suggest there is a very real risk of you offending in a serious way if you are released from prison. Both health assessors have expressed the view that you will continue to pose a significant risk to the community following your release because of factors such as

your personality disorder, lack of empathy, and consumption of drugs and alcohol.

17     Section 87(4)(b).

18     Section 87(4)(c).

[41]     Ms Waterton also states that you are likely to offend against women in close association with you in the same manner, namely by engaging in an opportunistic sexual  assault  against  a  vulnerable  adult  woman.   You  are  also  more  likely to reoffend when suffering emotional distress or social isolation and when you are intoxicated or under the influence of drugs.

Absence, or failure of, efforts by you to address the cause or causes of your offending19

[42]     The   pre-sentence   reports   indicate   that   although   you   have   attended rehabilitative programmes they have not been successful in addressing your alcohol dependency  or  ability  to  cope  with  stress  factors.    You  attended  (but  did  not complete) a drug and alcohol treatment programme in Marton and you have completed a drug and alcohol treatment programme when serving your seven year sentence  for  wounding  with  intent  to  cause  grievous  bodily  harm.     Those programmes seem to have been ineffective in reducing your consumption of alcohol or your violent behaviour whilst intoxicated as evidenced in the background to your present offending.

[43]     During  your seven  year prison sentence  you  attended a straight thinking programme and a treatment programme in the violence prevention unit.   The probation staff report little progress was made by you with these programmes.

[44]     Ms Waterton expresses  serious reservations about whether  you would  be responsive to any treatment in the future.  Although you are eligible for the Adult Sex Offender Treatment programme, you will not be able to attend that programme until you acknowledge your offending.  At this stage, your denial and inability to accept any responsibility for your offending means that most treatment programmes would not be effective in addressing your underlying problems.

[45]     This factor strongly indicates that preventive detention is appropriate in your case.      Although   you   have   shown   some   motivation   to   enter   rehabilitative

19     Section 87(4)(d).

programmes, this factor cannot be given much weight when you also refuse to fully accept your wrongdoing.

A  lengthy  finite  sentence  is  preferable  if  this  provides  adequate  protection  for society20

[46]     I  must  also  consider  whether  a  finite  sentence  would  provide  adequate protection for society. As your offending was against an adult female, you would not be eligible for an extended supervision order upon being released from prison.21

Therefore the prospect of continued monitoring cannot be taken into account in assessing your future risk.

[47]     The Court of Appeal stated in R v Bailey, albeit in the context of the less serious offence of indecent assault, that preventive detention should not be imposed without first allowing a lengthy finite sentence to serve as a final warning and opportunity to address underlying drivers of offending.22   You have already received that opportunity in respect of your serious violent offending, where a relatively long prison sentence of seven  years was imposed in 2002, and  you  served all of it. Despite that warning, you did not take the opportunities that prison provided to address your issues relating to mental health, drugs, alcohol, and most importantly,

violence as a product of all of those factors.

[48]     I have very carefully considered whether a very long finite sentence with a minimum period of imprisonment provides adequate protection for society.  I have also assessed the likelihood that, at the end of such a sentence, you would commit another  qualifying  offence  that  could  be  violent  or  sexual  in  nature.    In  my assessment there is convincing evidence to support the likelihood of you committing both types of offences in the future.   You have only committed one violence qualifying offence in the past, and this is your first set of sexual offences.  However, your pattern of offending, in both seriousness and frequency, shows a risk of you committing further violence qualifying offences.  I am also satisfied that the attitudes

you have displayed towards the present charges of sexual offending reveal a real risk

20     Section 87(4)(e).

21     Parole Act 2002, s 107B(2).

22     R v Bailey CA102/03, 22 July 2003 at [20].

that  you  will also commit further qualifying sexual offences if  you  were to be released.

[49]     Ultimately, I have been driven to the conclusion that: (1)       your pattern of serious violent offending;

(2)       the low likelihood of your rehabilitation;  and

(3)       your high risk of reoffending

means that society cannot be adequately protected by a finite prison sentence.

Minimum period of imprisonment

[50]     Section  89  of  the Act  governs  the  imposition  of  a  minimum  period  of imprisonment where preventive detention is imposed.  The term must be at least five years and must be of a length that reflects the gravity of the offending and the need to keep the public safe, in light of the offender’s age and the risk he poses to the

community.23

[51]     The correct approach to assessing the period that reflects the gravity of the offending is to assess the minimum period I would have imposed with a finite term.24

The question then becomes whether the nine years that would have otherwise be imposed is sufficient to keep the public safe, in light of your age and the risk you pose to the community.  I consider that is sufficient to protect the public in your case, and that the interests of protecting the public would require a minimum period of imprisonment  of nine  years.    However,  because  you  have been  in  prison  since

30 September 2010 for related offending, I am obliged to reduce that minimum

period to one of six and a half years from today’s date.

23     Section 89(2)(a) and (b).

24     R v Johnson [2004] 3 NZLR 29 (CA) at [26].

Conclusion

[52]     Mr Makavalu, can you now please stand.

[53]     I now sentence you to preventive detention on the charges of sexual violation by rape, indecent assault and sexual violation by unlawful sexual connection, with a minimum period of imprisonment of six and a half years.  I also impose a sentence of three years’ imprisonment for the charges of threatening to kill and assault with a weapon, to be served concurrently.

[54]     You may now stand down.

D B Collins J

Solicitors:

Crown Solicitor, Rotorua