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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Makavalu

Details

AGLC: R v Makavalu [2013] NZHC 805
Case: [2013] NZHC 805
Decision Date: 19 April 2013

CaseChat Overview and Summary

The case of R v Makavalu involved a sentencing decision by Collins J in the High Court of New Zealand, Rotorua Registry. The defendant, Mecican Makavalu, had pleaded guilty to five charges, including sexual violation by rape, indecent assault, sexual violation by unlawful sexual connection, assault with a weapon, and threatening to kill. The primary issue before the court was whether Makavalu should be sentenced to preventive detention or to a lengthy finite sentence of imprisonment. The court assessed Makavalu's offending history, which showed a persistent escalation of serious violent offences, including assaults against women and a child. Various pre-sentence assessments by a probation officer and health professionals highlighted Makavalu's high risk of reoffending and his lack of remorse. The court determined that a finite sentence would not adequately protect the public due to the seriousness of the current offences, the pattern of escalating violence, and the low likelihood of rehabilitation. Consequently, the court sentenced Makavalu to preventive detention with a minimum period of imprisonment of six and a half years, along with concurrent sentences for the other charges.

Orders