R v Muncaster HC Wellington CRI 2010-024-1057

[2011] NZHC 507

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-024-1057

THE QUEEN

v

LYLE KEITH MUNCASTER

Hearing:         20 May 2011

Counsel:         J A Ongley for Crown

J Miller and C Hollingsworth for Accused

Judgment:      20 May 2011

SENTENCE OF RONALD YOUNG J

[1]      Mr Muncaster, you are now for sentence having pleaded guilty to charges of abduction, two charges of unlawful sexual connection, one of rape and threatening to kill.

[2]      You knew the victim.   On 26 October 2007 she was at her home and you arrived.  There had been some damage to a car which the victim and a friend had purchased.  You had been a boyfriend of the girl who had purchased a half share in the car together with the victim.  You convinced her to get into your car and you

drove the victim to look at the car.

R V LYLE KEITH MUNCASTER HC WN CRI 2010-024-1057 20 May 2011

[3]      After  you  had  both  inspected  the  car  instead  of  taking  her  home  you accelerated past the turn off to her street telling her that if she jumped out of the car she would kill herself but that if she did as you said she would live. You told her that you were going to rape her.  She began to cry uncontrollably but you told her if she did not stop you would kill her.  You told her once again that if she did as she was told she would live.  While you were driving you then inserted your hand into her vagina on two occasions as you drove to an isolated area.   Eventually you drove down a side road into a picnic area.

[4]      It was night time.  You told the victim that if she tried to get away you would set your dogs on her.  You then raped her in the back of the car.  Later you drove her back towards her home but stopped about two hundred metres away.  Initially you apologised to her but then said if she told the police, you knew where she lived and you would come and kill her and the whole of her family.  If she remained silent you told her she would never hear from you again.  The victim was so frightened that she did not report your sexual violence.  In December 2008 she overcame that fear and contacted the police because she heard that you had been imprisoned and she, therefore, was safe.  Your initial reaction to the police was to deny any knowledge of the events.  Eventually though you were charged with this offending and you pleaded guilty when the case was still in the District Court before committal.

[5]      The probation report notes that you are thirty-eight years of age and you have been in a relationship with a woman on and off for over eighteen years and that you have a six year old son from that relationship.  You say you had a tragic upbringing you were psychologically, physically and sexually abused by your step mother and physically abused by your father and other members of your wider family.  You were in trouble from a young age; remarkably you were imprisoned in the Youth Prison at fifteen years of age.

[6]      The probation report records that you do express some remorse and say you are now committed to treatment but you do not still accept or understand the factors that have led to your offending.  The probation officer says your risk of re-offending is high given your past.

[7]      As to your past history of offending you have a lengthy and worrying list of violence and sexual offending.   Your offending began in 1987 with a mixture of violent and property offences.  You were sentenced to corrective training in 1989. During the early 1990’s you committed a large number of property offences particularly burglary.  The sentences of imprisonment you received were longer and longer.  Further violent offending particularly towards women occurred in the 1990’s and then you are convicted in the mid 1990’s of two charges of rape, one of unlawful sexual connection, four of assaulting a female as well as other serious violence.  You were then sentenced to twelve years’ imprisonment.

[8]      Your  next  serious  offending  was  in  2006.   You  were  sentenced  for  that offending in 2008 and it involved serious violent offending, serious sexual offending, it included a kidnapping and threats with a firearm.   You were then sentenced to preventive detention for a minimum period of twelve years.  This offending occurred between that previous offending and your apprehension and sentence.

[9]      The Crown say that a finite sentence of imprisonment is appropriate.  They do not seek a sentence of preventive detention  because they say given you are already subject  to  such a sentence the public will  thereby be protected  by that sentence.  They submit that a finite start sentence for the offending should be in the region of eleven to twelve years, with a substantial uplift for your past offending and an adjustment for your timely guilty plea.

[10]     I take into account the submissions that your counsel have made, both written and in Court today.  In Court your counsel said that the proper starting point is in the range of seven to eight years and that the aggravating features are the abduction and harm to the victim.   They accept that there should be some uplift from your past convictions but there should be a deduction both for remorse and your guilty plea.

[11]     The victim impact report makes chilling reading.  It shows that your actions have substantially affected the emotional stability and the life of this young woman. The rape and the threats were terrifying for her.  She believed that you would carry out the threats to kill her and her family if she complained so she did not make a complaint.  It was only as I have said when she saw a newspaper article that you had

been imprisoned that she felt safe enough to do so.   Her personality has changed. She was a confident bubbly person and she is now shy and will not go anywhere unless her partner is with her.  She has terrible nightmares and although she has had extensive counselling she says that there is no area of her life that that night back in

2007 has not affected.  She hopes that she can return to the person she was.

[12]     If you had not had a sentence of preventive detention imposed at your last offending I would have imposed such a sentence now.   In my view the evidence clearly  establishes  that  you  are  likely  to  commit  another  qualifying  offence  if released at the end of your expiry date.  The evidence for this is overwhelming.  This offending was committed while you knew you had committed other serious sexual offending.  I note that you were close to being sentenced to preventive detention in

1996 when you first committed serious sexual offending.  Your treatment in prison and out of prison has had no effect on your offending.

[13]     Although you now accept you committed this offending and accept you need treatment there is frankly nothing to suggest that treatment is likely to have any effect on your future offending.   The reports by the psychologist and psychiatrist make it clear that given your past you are at very high risk of reoffending.

[14]     As I have said because the risk to the community is already reduced by virtue of  the  current  preventive  detention  sentencing  it  would  in  those  circumstances simply be  inappropriate  and  wrong  in  principle  to  impose  a  further  concurrent sentence of preventive detention and it would do nothing to protect anybody.   And so I must now consider what the appropriate finite sentence is.

[15]     I am satisfied there are the following aggravating features relating to your offending.  Firstly, there was some planning and premeditation.  I accept there is no particular evidence that you planned to rape this young woman when you first picked her up.  It is, however, difficult to understand why you were taking her to see the car and what the relevance of all of this was to you.  But I think shortly afterwards you did decide to rape her.  It was certainly not an immediately impulsive act.  It required you to abduct her and drive her to a secluded place – that required persistence, determination and some premeditation.

[16]     Further, you told her that you were going to rape her well beforehand.  That, no doubt, was even more terrifying for her.   She was unlawfully detained over several hours.   This is a further serious aggravating feature.   Next, there was a substantial violation. You violated her twice digitally as well as raping her.

[17]     Next, the degree of harm to the victim.   Although you did not physically attack her beyond the violence of the rape and sexually assault, you threatened to kill her and her family.  She believed you.  This enabled you to avoid prosecution for this crime for some years.  The victim impact is, therefore, very high in this case.  These factors take this offending well beyond the seven to eight years your counsel has said.

[18]     I  consider  that  a  start  sentence  of  twelve  years’  imprisonment  for  this offending is appropriate.  To that must be added an additional period for your past offending.  This is the third time that you have faced serious lengthy sentences for serious sexual crimes.   I consider a further uplift of two years’ imprisonment is justified for your past offending and the fact that this offending occurred while other serious sexual offending was still undiscovered.

[19]     I accept that you pleaded guilty early.   You saved the complainant giving evidence and that is important.  In those circumstances I consider that entitles you to a twenty-five per cent deduction for your guilty plea.  I reject the suggestion you can claim a deduction for remorse.  The remorse claim was late and insubstantial.  It is difficult to accept that you are truly remorseful when you left your threat to kill the complainant hanging over her for years.

[20]     You are at present a very high risk to women.  I make it clear in my view, that you should not be released from prison until the risk you pose to women is so low that you can very safely be managed in the community.  Ultimately the responsibility for this assessment many many years from now will fall on the Parole Board.  But currently, I stress, your high risk to women.

[21]     I, therefore, sentence you in this way:

(a)      on the charge of rape you are sentenced to ten years and six months’ imprisonment with a minimum non-parole period of six years and two months;

(b)      on  the  charge  of  abduction  you  are  sentenced  to  four  years’

imprisonment;

(c)       on the two sexual violation charges you are sentenced to six years’

imprisonment;

(d)on   the   threatening   to   kill   charge   one   year   imprisonment,   all concurrent.

Ronald Young J

Solicitors:

J A Ongley, Luke Cunningham & Clere, PO Box 10 357, Wellington, email:  [email protected]

J Miller, John Miller Law, PO Box 6314, Wellington, email:  [email protected]