R v Maru

[2018] NZHC 1562

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI-2017-096-4072

CRI-2017-083-696 [2018] NZHC 1562

THE QUEEN

v

SHANE MARU

Counsel:	J M O’Sullivan for Crown S Gill for Defendant
Sentencing:	21 June 2018

SENTENCING REMARKS OF CHURCHMAN J

[1]    Mr Maru, you appear for sentence today having been found guilty by a jury of the offence of sexual violation by rape.1 You had already pleaded guilty to two other charges connected with that offending: one of those wounding with intent to cause grievous bodily harm,2 a very serious offence; and the other, theft of property worth

$500 or less.3

[2]    Sexual violation by rape and wounding with intent to cause grievous bodily harm are both serious offences as categorised by s 86A of the Sentencing Act 2002, and you will recall that first strike warnings were given to you at the time of the entry of the convictions.

[3]    In addition to those matters, today you are for sentence on a number of other matters from the District Court to which you have entered pleas of guilty. These are:

1      Crimes Act 1961, s 128(1)(a) and 128B. Maximum penalty is 20 years’ imprisonment.

2      Section 188(1). Maximum penalty is 14 years’ imprisonment.

3      Sections 219 and 223(d). Maximum penalty is three months’ imprisonment.

R v MARU (SENTENCING REMARKS) [2018] NZHC 1562 [21 June 2018]

(a)wilful damage;4

(b)burglary;5

(c)male assaults female;6

(d)aggravated injury to a police officer;7

(e)driving in a dangerous manner;8

(f)failing to remain stopped for an enforcement officer;9

(g)failing to stop for red and blue lights;10

(h)driving while your licence was suspended or revoked;11 and

(i)giving false details as to your identity.12

[4]The sentencing this afternoon, the structure of it is that I will address:

(a)your offending;

(b)the approach that I am taking to the sentence;

(c)the starting point that I have adopted which is something your counsel and counsel for the Crown have made submissions to me about;

4      Summary Offences Act 1981, s 11(3)(a). Maximum penalty is three months’ imprisonment or a fine of $2,000.

5      Crimes Act 1961, s 231(1)(a). Maximum penalty is 10 years’ imprisonment.

6      Section 194(b). Maximum penalty is two years’ imprisonment.

7      Section 191(2). Maximum penalty is seven years’ imprisonment.

8      Land Transport Act 1998, s 35(1)(b). Maximum penalty is three months’ imprisonment or a fine of $4,500.

9      Section 52(1)(aa). Maximum penalty is a fine of $10,000.

10     Section 52(1)(c), 52(3) and 52(5). Maximum penalty is a fine of $10,000.

11     Section 32(1)(c) and 32(3). Maximum penalty is three months’ imprisonment or a fine of $4,500, and disqualification from holding or obtaining a driver licence for six months.

12     Section 44. Maximum penalty is a fine of $10,000 and disqualification from holding or obtaining a driver licence for three months.

(d)the adjustments that I make to that starting point to reflect what has been described as the totality of your offending and, also to consider the adjustments necessary in relation to your prior convictions and to your guilty pleas to the various matters that have come from the District Court;

(e)the minimum period of imprisonment which might be imposed; and

(f)your final sentence.

Your offending

Charges transferred from District Court

[5]    If I could start first by addressing the matters arising from the District Court offending.

[6]    These commenced on 14 January last year, you were arguing with your girlfriend and she threw your phone. You became angry. You punched a glass window causing it to break.

[7]    A week later, on 22 January last year, you entered an address, taking a screwdriver from the garden shed and used that to force open a door at the rear of the house. The police located you on the property, having been alerted to your presence by a neighbour.

[8]    About three months after on 2 May last year, whilst suspended from driving, you were stopped by the police due to the car that you were driving’s registration having lapsed. You provided false details and, when challenged, drove away at speed. With the lights and sirens activated, the police pursued you to your home. You refused to leave, you lunged at an officer as he attempted to arrest you, punched him near his eye and you tackled him so that he fell down a concrete step to the ground. He sustained a severely dislocated finger, a grazed arm, bruising to his left eye area, and small scratches to his face as a result of that assault.

[9]    Again, some months after that on 18 August last year, you got into an argument with your partner which became physical. You punched her in the face with a closed fist. The following day, you both got into an argument again and began pushing and shoving each other. You grabbed your partner by the throat, holding her up against the wall for a short time before releasing her. She suffered bruising to her right eye and neck area, and a small cut to her nose.

High Court trial offending

[10]   I turn now and describe the High Court matters that are relevant to your sentencing.

[11]   On Tuesday 14 November last year, you arranged to meet the victim at her address for the purpose of paid oral sex. However, once the victim had performed oral sex, you commenced to have sexual intercourse with her without her consent. You continued to have intercourse with her despite her repeated protests and you began to punch her about the face. The victim became unconscious due to the severity of your blows. When the intercourse was finished, you stole the victim’s cell phone and left the address while she was still unconscious.

[12]   The victim continued to go in and out of consciousness over the next 24 hours and was unable to leave the address as a result of the injuries that you inflicted on her. Without her phone, she was unable to call for help, and indeed it seems that is why you took her phone. She was only discovered when the police conducted a welfare check on her.

[13]   The victim suffered a fractured eye socket, fractured jaw, severe swelling and bruising as a result of the assault. The victim impact statement which has been read to the Court today records that her memory has been affected to the extent that she forgets simple things. Emotionally, she constantly relives the trauma of that night. She is now scared of people, particularly men, and is no longer able to work. She states that she lives like a hermit and finds going into public places very hard.

[14]The consequences for her of your actions have been profound.

Sentencing approach

[15]I can now address the question of sentencing approach.

[16]   Counsel for the Crown, Ms O’Sullivan, submits that, as the three charges from the trial arose from a single event, concurrent sentences are appropriate in respect of those matters. She submits that, due to the risk of double counting the violence used by you in relation to both the sexual violation and wounding with intent, the sexual violation charge should be treated as the lead offence, with the violence involved being treated as an aggravating feature. The theft charge, she submits, should be dealt with by entry of a conviction and an order for reparation.13

[17]   Your counsel, Mr Gill, while in agreement with these submissions, submits that, given the significant jail term that must be imposed, an order for reparation would be meaningless and would give the victim false hope of recovering the value of her phone. In those circumstances, I accept that it would be inappropriate to direct a reparation order.14

[18]   As to the charges transferred from the District Court, Ms O’Sullivan submits that cumulative sentences are appropriate as the offending was unrelated to the trial offending.15 Mr Gill, on your behalf, has submitted to the contrary, and he has argued that notwithstanding that the non-trial offences are separate, they should not be subject to a cumulative sentence of imprisonment on the basis of the totality principle.

[19]   In relation to the trial charges, I have elected to impose concurrent sentences, with sexual violation by rape being the lead offence. In terms of the charges transferred from the District Court, which relate to a different period of offending stretching over many months in 2017, I will impose cumulative sentences. But each charge within the sentence will be subject to my general overview of the totality of the offending in order to ensure that the total in the aggregate is not disproportionate to the level of criminality involved.16

13     Sentencing Act 2002, s 12.

14     R v Rollo [1981] 2 NZLR 667 (CA) at 672.

15     Sentencing Act 2002, s 84.

16     Sentencing Act 2002, s 85(4).

Starting point

Law of starting points for sexual violation

[20]   The starting point for the Court in relation to the lead offence, the offence of sexual violation, must reflect the seriousness of that offending. Both counsel have referred to the leading Court of Appeal decision in R v AM, that case identified different bands of sentences for sexual violation, including rape.17 This Court, like all other Courts, is bound by the guidance given by the Court of Appeal in that case as to what the appropriate sentences are. That case indicated that when an offence of rape involved two or three of the aggravating features to a moderate degree, rape offending falls into band 2, justifying a starting point of between seven and 13 years’ imprisonment.18 Rape offending will fall into band 3, justifying a starting point of between 12 and 18 years’ imprisonment when it involves two or more of the identified aggravating features to a high degree, or three to a moderate degree.19

Aggravating and mitigating factors of the offending

[21]   The Court therefore has to consider what the aggravating features in relation to this particular offending are, and where exactly to place your offending on the scales that have been outlined by the Court of Appeal.

[22]   Ms O’Sullivan submits that a number of aggravating factors identified in R v AM and in another case called R v Taueki,20 the guideline case for wounding offending contrary to s 188(1) of the Crimes Act, are present in relation to your offending. She lists extreme violence, vulnerability of the victim, serious injury and harm to the victim, an attack to the head, and violence being used to facilitate another crime.

[23]   Ms O’Sullivan submits there are no offence related mitigating factors. I am required by law to consider whether there are any such mitigating factors.

17     R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

18 At [98].

19 At [105].

20     R v Taueki [2005] 3 NZLR 372 (CA).

[24]   While the Court of Appeal case in R v AM that both counsel have referred to, had noted that previous consensual sexual activity can reduce culpability for rape in limited circumstances,21 Ms O’Sullivan submits that this is not applicable in this case as the prior consensual sexual act was different in nature, and you were aware that the victim had only agreed to perform oral sex.

[25]   As the offending involves two  aggravating  factors  to  a  serious  degree,  Ms O’Sullivan submits it falls into band 3 of R v AM and an appropriate starting point for the rape and wounding offending of 13-14 years’ imprisonment should be adopted.22

[26]   Mr Gill does accept that there was a high level of violence used against the victim, and indeed that concession is inevitable. However, in his written submissions he didn’t accept that the victim was vulnerable, either in terms of the guidelines given by the Court of Appeal in R v AM, or generally. He submits that she was significantly older than you and he describes her as ‘street wise’. I accept that she could be described as ‘street wise’ but I had the opportunity of observing her in the witness box and observing the video statement that she made. It is clear that she is a young woman coping with a number of difficulties which you would have observed having sat through exactly that. I think it is appropriate to describe her as vulnerable, and indeed the nature of her occupation, she was a sex worker working from her own home with no-one to call upon for support when things went wrong as they did in this case, does indeed qualify her for the description of being vulnerable.

[27]   Mr Gill submitted that the violence was part and parcel of the crime of sexual violation by rape as opposed by violence being used to facilitate another crime. I accept that submission from him. This violence seems simply to have been gratuitous on your part, simply something that you did for no obvious reason.

[28]   Mr Gill, in relation to mitigating factors, agrees with the Crown as far as this offending is concerned, there are no offence related mitigating features and he doesn’t

21     Above n 15, at [54]-[60].

22     With reference to R v Baird CA278/04, 25 November 2004; R v Hannagan CA396/04, 9 June 2005; and R v Amohanga [1989] 2 NZLR 308 (CA).

suggest that the fact that initially there was a consensual sexual encounter, is a significant mitigating feature of itself. He submits that the offending falls at the top end of band 2 and has submitted that 10 years is a more appropriate starting point having regard to the guidance given by the cases than the 12 to 13 years relied upon by the Crown.23

Decision on starting point

[29]   I have concluded that there are a number of aggravating features in your offending, two of those fall within the category of aggravating to a high degree. That’s the serious violence involved and the injury and consequences for the victim. I accept that the victim’s vulnerability as a sex worker working from her own home is a lesser aggravating feature, but nonetheless it is still an aggravating feature that the Court is obliged to take into account.

[30]   I have compared your offending in this instance with a number of other cases including those cases that both counsel have submitted to me.24 Given the aggravating features of this particular offending, I consider your offending to be more serious than in the case of R v Baird25 which falls within the higher end of band 2 of R v AM; although it lacked the element of humiliation that was present in that case, the violence here was to a higher degree and resulted in significant injuries to the victim’s head. The violence and resultant injuries also render your offending more serious than in the case of R v Hannagan26 which also falls within the higher end of band 2, although the offending in that case lasted for two hours whereas your offending was over in a relatively short time. It is my view that your offending is only slightly less serious than the offending dealt with by the Court in the case of R v Amohanga27 which falls within the lower end of band 3, as that case, along with violence that resulted in permanent injury to the victim in the form of partial hearing loss, also involved illegal entry into the home of a vulnerable victim.

23     Referencing the same cases cited above at n 22.

24     Tuli v R [2013] NZCA 624; R (CA13/2017) v R [2017] NZCA 462; and M (CA43/2017) v R [2017] NZCA 428.

25     R v Baird CA278/04, 25 November 2004.

26     R v Hannagan CA396/04, 9 June 2005.

27     R v Amohanga [1989] 2 NZLR 308 (CA).

[31]   On the basis of consistency with the other cases, and I am obliged to endeavour to be consistent with the approach that other Courts have adopted for similar offending, I have reached the conclusion that your offending falls within the range of higher band 2/lower band 3 and an appropriate starting point for the sexual violation by rape offending is 12 years six months’ imprisonment.

Global starting point

[32]   In relation to the offending of 22 January 2017, in considering the facts and the relevant case law, I have concluded that the appropriate starting point for the charge of burglary is three months’ imprisonment.28

[33]   In terms of the charge of aggravated injury to a police officer that formed part of the 2 May 2017 offending, the facts surrounding that incident and relevant case law point to one year imprisonment as an appropriate starting point.29

[34]   As to the offending of 18 August 2017, the circumstances of the assault along with the case law lead me to conclude that an appropriate starting point for the charge of male assaults female would be one year imprisonment.30 I have therefore arrived at a global starting point of 14 years nine months’ imprisonment.

Adjustments to reflect the totality of your offending

[35]   What I now must do is adjustments, the credits, to see where the ultimate sentence should be.

[36]   Section 85 of the Sentencing Act requires me to have regard to the totality of your offending which means I must examine all your offending as a whole and determine what an appropriate sentence is in light of that.

28     Rewita v Police [2013] NZHC 2175; Z v R HC Hamilton CRI-2009-419-47, 22 September 2009;

R v Betham DC Nelson CRI-2009-042-000495, 1 July 2009.

29   Frank  v  New  Zealand  Police  HC  Tauranga  CRI-2009-463-60,  19  October  2009;  Z  v  R    HC Hamilton CRI-2009-419-47, 22 September 2009; R v Betham DC Nelson CRI-2009-042- 000495, 1 July 2009; and R v Grant [2009] NZCA 266.

30     Heke v R [2016] NZCA 38; R v Wereta [2017] NZHC 935; R v Coker CA421/04, 21 April 2005.

[37]   While some of the charges, those from the District Court in particular, that you are to be sentenced on are minor in nature, others represent serious offending. In my assessment, the starting point of 14 years nine months’ imprisonment accurately reflects the totality of all of the charges.

Adjustments for personal factors

Adjustment to reflect your youth and remorse

[38]   I must now consider what adjustments to make in respect of your youth and any remorse that you have shown.

[39]   I am obliged to take into account your age to the extent that it is applicable in this case, along with the remorse that you have shown. That remorse includes the letter that I have been provided with today, that you have written to the victim. The fact that you have written such a letter reflects credit on you, although the fact that the letter contains many of the similar statements in similar letters that you wrote last year, promising to keep out of trouble, does somewhat reduce its impact.

[40]   Ms O’Sullivan submits that, although it has been widely recognised that a discount for youth is appropriate, and the reason for that is recognising that young people have greater difficulty in regulating their behaviour than older people. She submits that any such discount needs to be balanced against the seriousness of the offending which she argued was sustained rather than impulsive. She noted that in Arohanga v R, a case that counsel referred to, where a defendant with previous convictions had committed aggravated robbery when aged 17, the sentencing Judge was dismissive of his expressions of remorse and only gave him a discount of six per cent.31 In light of  the  seriousness  of  the  offending  and  your  criminal  history,  Ms O’Sullivan submits that a discount for your youth should be limited.

[41]   Mr Gill, on the other hand, submits that you are entitled to a substantial discount in respect of your youth and he has reminded me again today that at the time of this offending, you had only just turned 18. In his written submissions, and also in

31     Arohanga v R [2014] NZCA 379 at [30].

the oral submissions he has made today, he drew to my attention a decision of the Court of Appeal in the case of Chan v R in which the defendant was 22 years old at the time of offending and the Court said this:32

This Court has previously expressed concern that sentences should not be imposed that would have a crushing effect and become a barrier to rehabilitation. In our view, a discount of up to 15 per cent to reflect Mr Chan’s youth is appropriate in this case.

[42]I accept that there is some substance in that submission.

[43]   Mr Gill also referred to a case called Churchward v R, and it’s my view that the factors identified in that case are of some relevance to your sentence. As an 18- year-old, you are likely to be more impulsive than older people. A longer sentence will no doubt have a greater impact on you than someone of more advanced years. You have expressed remorse towards your victim for your violent offending, although as your counsel noted, your remorse does not seem to extend to all of the offending that the jury found you guilty of, and I am of course obliged to sentence you in accordance with the jury’s verdict.

[44]   The pre-sentence report that was prepared, and which I have had the opportunity of considering, noted that you were able to articulate your understanding of the impact, the significance that this offending had, not only the victim, but also her family as well.

[45]   I have already mentioned the letter of apology that you have written. You indicated that you would have been prepared to participate in a restorative justice exercise although you expressed an understanding of why the victim might be unlikely to agree to that given the nature of the offending.

[46]   While this offending was serious in nature and your criminal history is relatively extensive for someone as young as you are, it is my view that your youth and your prospects for future rehabilitation, along with the remorse that you have expressed even though that has been somewhat qualified or limited, do warrant a discount and I fix that discount at 10 per cent.

32     Chan v R [2018] NZCA 148 at [31].

Adjustment to reflect your previous convictions

[47]   I am obliged to consider your previous convictions. You have several previous convictions, including one conviction for assault with a blunt instrument committed in 2016 for which you were sentenced to 150 hours community work. Although this is of relevance in that it indicates you are not a person who can claim a previous good character, it is my view that this offending does not warrant an uplift to the sentence. In other words, I am not going to add anything to your sentence for your prior offending.

Adjustment for guilty plea

[48]   Mr Gill submits that, while on the facts of this case, the complainant was still required to give evidence about the totality of the offending, a discount in the order of 10-15 per cent for the guilty plea to the wounding with intent to cause grievous bodily harm charge would nevertheless be appropriate in the circumstances. He submits that the complainant would have had to give evidence no matter at what point you accepted responsibility for the violence because the two charges were inextricably intertwined.

[49]   Ms O’Sullivan, on the other hand, submits that there was no guilty plea to the sexual violation by rape offending. That the plea to the violence and theft offending was of limited value as there was a strong prosecution case, as the victim was still required to give evidence rather than being spared that exercise, and that there is still some dispute by you as to the facts of the offending. In these circumstances, she submits, that very little by way of discount can be imposed on that ground.

[50]   Applying the principles outlined by the Courts in the case of Hessell v R, while your guilty pleas to the wounding with intent to cause grievous bodily harm, and the theft charge, indicated that you had accepted some responsibility for your offending, it did not avoid the need for the victim to go through the trauma of giving evidence at trial and will have had minimal impact on the length of the trial. Her victim impact statement records that she found the court process really difficult. Going into court, seeing the evidence, seeing the photographs of herself and the state that she was in after you assaulted her, bring back images which she says have been burnt into her brain and have had a huge emotional effect on her. I am therefore, in respect of your

pleas of guilty to the violence and the theft charge, prepared to give you some credit but that in the circumstances, can only be five per cent.

Minimum period of imprisonment

[51]I am also required to consider a minimum period of imprisonment (MPI).

[52]   Under s 86 of the Sentencing Act, where a sentence exceeds two years’ imprisonment, the Court may order a defendant, such as you, to serve a minimum period of imprisonment if satisfied that the normal non-parole period, which is one- third of the sentence served, is insufficient to hold the offender accountable, to denounce the offender’s conduct, deter the offender and protect the community.

[53]   Ms O’Sullivan submits that the seriousness of the offending in this case is such that a non-parole period of one-third would be insufficient and, while a period of two- thirds could be considered, her submission was that a reduced period of 50 per cent, taking your relative youth into account, would be appropriate.

[54]   In my view, the standard parole provisions as would relate to your sentence are insufficient to hold you accountable, denounce your conduct, deter you from offending again, and to protect the community. I therefore impose an MPI of seven years four months.

Sentences

[55]   I appreciate that all of this will have been difficult for you to take in but I will now summarise what the overall sentence is.

[56]   The effective sentence for the totality of your offending is 12 years six months’ imprisonment, made up as follows:

(a)on the charge of sexual violation by rape, a term of 10 years eight months’ imprisonment;

(b)on the charge of wounding with intent to cause grievous bodily harm, a concurrent term of four years’ imprisonment;

(c)on the charge of male assaults female, a cumulative term of 10 months’ imprisonment;

(d)on the charge of aggravated robbery, a cumulative term of 10 months’ imprisonment;

(e)on the charge of burglary, a cumulative term of two months’ imprisonment;

(f)on the charge of theft, convicted and discharged;

(g)on the charge of wilful damage, convicted and discharged;

(h)on the charge of driving in a dangerous manner, convicted and discharged;

(i)on the charge of failing to remain stopped for an enforcement officer, convicted and discharged;

(j)on the charge of failing to stop for red/blue light, convicted and discharged;

(k)on the charge of driving while licence suspended or revoked, convicted and discharged; and

(l)on the charge of giving false details as to identity, convicted and discharged.

[57]I also order that you are to serve a MPI of seven years four months.

[58]As I indicated, there is to be no reparation order.

[59]   The other outstanding issue is the application for a victim protection order. I accept that the Court in these proceedings has jurisdiction to make such an order. My initial reaction was, given the length of time that you will be spending in prison before

you return to the community, there is likely to be little by way of utility. However, I accept that if such an order is in place, that may be one matter which may assist in helping you to avoid committing the same sort of offences that have brought you before the Court today. Accordingly, I make the victim protection order.

[60]You may now stand down.

ADDENDUM

[61]   On 2 July 2018, it was brought to my attention that the minimum period of imprisonment (MPI) of seven years and four months imposed on Mr Maru exceeded the maximum penalty available under s 86(4) of the Sentencing Act 2002. The maximum MPI Mr Maru could face was a seven-year term.33

[62]   The original MPI of seven years and four months was intended to reflect 59 per cent of Mr Maru’s total 12 year and six-month period of imprisonment. That same percentage applied to Mr Maru’s 10 year and eight-month sentence of imprisonment for sexual violation by rape would result in an MPI of six years and three months. This is lower the two-thirds maximum available.

[63]   My reasoning for the imposition for an MPI remains the same, and therefore I impose an MPI of six years and three months, superseding the original MPI I imposed in the body of this judgment.

Churchman J

Solicitors:

Luke Cunningham Clere, Wellington Gill & McAsey, Lower Hutt

33     R v Bell [2007] NZCA 17.