R v Ngawhika HC Auckland CRI 2010-092-6946

[2010] NZHC 2001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-6946

THE QUEEN

v

DAVID HENRY NGAWHIKA

Hearing:         12 November 2010

Counsel:         L MacDonald for the Crown

N Thinn for the Prisoner

Judgment:      12 November 2010

NOTES ON SENTENCING BY RODNEY HANSEN J

Solicitors:           Meredith Connell, P O Box 2213, Shortland Street, Auckland 1140 for Crown

Thinn & Co, P O Box 37-324, Parnell, Auckland 1151

R V NGAWHIKA HC AK CRI-2010-092-6946  12 November 2010

Introduction

[1]      Mr Ngawhika, you appear for sentence having pleaded guilty to three counts of sexual violation (one of rape and two of unlawful sexual connection), one count of aggravated burglary, one of aggravating wounding and one of injuring with intent to cause grievous bodily harm.  All charges arise out of a home invasion and the rape of a young woman in Pakuranga on the night of 9 and 10 October 1996.

[2]      Since then, and before your involvement in this offending was detected, you have been sentenced to 12 years imprisonment for other sexual violation offences. Because of what has emerged to be a pattern of serious sexual offending, the Crown seeks a sentence of preventive detention and the critical issue that I have to decide today is whether to sentence you to a substantial finite term of imprisonment, to be served in addition to the sentence you are currently serving, or one of preventive detention.

Background facts

[3]      I begin my remarks by setting out the facts of your offending.  The 24-year- old victim was living with her mother at an address in Sunnyhills, Pakuranga.  She had recently returned from a period of overseas travel.   You lived in the vicinity. Over a period of time you had observed the victim’s movements.  It wasn’t difficult for you to do this because her home was of an open design and was located at the end of a cul-de-sac which backed onto a reserve.  This gave easy access from the surrounding streets.  You became familiar with her movements, her associates, her lifestyle and the layout of her home.

[4]      At about 8.00 p.m. on 9 October, the victim and her mother returned to the home.  At about the same time, you set off on foot and you ended up going along an alleyway which led to the reserve behind their house.  From there you watched the property.  Soon after, the victim’s mother left the address.  A ground floor window

had been left slightly open.   For some time you observed the victim while she watched a video in the house and you continued watching her until she went to bed.

[5]      You then entered the house through the insecure window downstairs.  You walked through the house, disabling the telephone and turning off the mains power at the switchbox.  You took a knife from the kitchen, went upstairs and disabled the second telephone.  You then opened a window that led to a balcony which, in turn, led to the exterior window of the victim’s room and this allowed you to observe her in her bed.

[6]      At this stage your movements woke her.   She stayed in bed, too scared to move.   You entered the room wearing a balaclava which left only your eyes and mouth visible.  You told her not to move and when she reached up to turn on the light, you grabbed her and pinned her to the bed.  As she began to scream and resist you, you punched her in the face four or five times while abusing her.  You tried to smother her cries by covering her mouth with your hand and a pillow, and then you put the blade of the knife against her throat.

[7]      At this point she stopped struggling and pleaded with you not to hurt her. You said to her, “I won’t hurt you if you cooperate.  All I want is a good fuck and then I’m out of here”.  You confirmed that she was alone and that her ex-boyfriend would not be coming.  You were able to describe the vehicle he drove and the fact that her mother was out for the evening.  You then placed a pillowcase over her head and the sexual abuse began.

[8]      You fondled her breasts.  You turned her over and removed her underwear. You performed oral sex on her.  You penetrated her digitally.  You then raped her, forcing her to have intercourse in several different positions.  You referred to her as “baby” and told her that you had been watching her.  She continually asked you not to hurt her and you said you would not as long as she complied.  All told, from the time that you entered the room until you left, the attack lasted around one hour.

[9]      After you had finished you said to her, “I’m going to buy some time”.  You used bedding to tie her wrists and ankles together and left the pillowcase on her

head.  You washed your hands and used a damp towel to wipe her genitalia.  You left, retracing your steps towards your home, discarding the knife en route.   The victim waited a few minutes and managed to untie herself.  Finding that the phones in the house had been disabled, she made her way to a neighbouring property to telephone for help.

Victim impact

[10]     The victim was 24  years old at the time.   She is now 38 and is living overseas.   She sustained injuries to the left side of her face, including a slight fracture of her eye socket which took some weeks to heal.   She also suffered financially as it was many weeks before she was able to return to  work.   Not surprisingly, however, it is the emotional harm that has been most serious and most enduring.

[11]     In her victim impact statement, which I hope you have read, she describes how after the attack she suffered frequent anxiety attacks and could not stay in her home.  She was petrified that you might return and despite being a very independent person, she became afraid of the dark.  She speaks of her continuing feelings of fear, even after she moved overseas.  She says it has taken her 12 years before she could again live comfortably on her own.   Her trust in men is reduced.   She says her confidence  was  greatly  diminished  and  it  has  taken  a  long  time  for  that  to  be restored.

[12]     Her mother, whose dignified presence in Court this morning I acknowledge, has read to you her victim impact report.   As you will have heard, she too was traumatised by what happened.  She has described the shock and disbelief that she felt when she heard about it, the blame that she felt herself for having left her daughter  alone  and  for  not  providing  her  with  a  safe  environment.    She  has mentioned her own distress that after this event her daughter felt unable to return and stay in the room that she had occupied since she was a child of four.

[13]     So the impact of what you did that night on these two women, mother and daughter, has been serious and profound indeed.

[14]     As I mentioned, your responsibility for the attack was not revealed until some

12 years later.  You were not a suspect at the time.  A DNA profile was taken from the victim.  In 2003, when you were finally convicted of the other sexual offending I have referred to, you provided a DNA sample.  Due to an administrative error, there was no evidential match made until 2008, at which time you were spoken to by the police.  You refused to provide a voluntary DNA sample but a compulsion order was subsequently made and a DNA match permitted charges to be laid earlier this year.

Personal background

[15]     I want to say something next about your personal background.  You are a 46- year-old  man  of  Ngati  Whatua  and  Tainui  descent.    You  were raised  in  South Auckland, the fourth eldest of 10 siblings, two of whom were raised by extended family members because of your parents’ inability to support all of their children. You report that your formative years were marked by alcohol abuse, severe domestic violence and physical abuse.   Both of your parents were heavy drinkers and there were numerous and sometimes frightening incidents of domestic violence.   The family was often under extreme financial pressure.

[16]     When  you were older,  your father converted to Christianity and stopped drinking.  Your mother’s behaviour was unchanged.  This engendered divisions in the family and your mother left the family home.

[17]     It is not surprising, having regard to your home environment, that you left school without formal qualifications.  You obtained work as a shepherd and a scrub cutter and then had a variety of semi-skilled positions.  Then, in your early twenties, you were able to capitalise on what are obviously outstanding musical talents and you developed a successful career as a professional singer and musician which you maintained until your arrest in early 2000.

[18]     You married your first wife at the age of 21.   Soon afterwards, apparently without consultation with you, your wife adopted her niece via the whangai process. There  was  a  period  of  separation  and  then  your  wife  announced  that  she  was pregnant and the relationship resumed.  You were then devastated to learn that you

were not the father of the child and a year or so later you and your wife separated and divorced.   You married for a second time at the age of 28 years.   From all accounts, that was a successful  relationship.   You and  your second  wife had  a daughter who is now aged 15 years.  You also have a fourth child, your eldest, who is now aged 27, whom you fathered when you were in your late teens.

[19]     The offending of which you were convicted in July 2003 was on eight counts of sexual offending against your whangai daughter (your first wife’s niece).   This offending, which included repeated rapes and anal and oral intercourse, took place over a nine-year period from when the victim was aged seven until she was 16 years of age.  It did not cease until 2001 when the victim complained.

[20]     As I have mentioned, you were sentenced to 12 years imprisonment.  There is an end sentence date of 3 June 2015 and you became eligible for parole on 4 June

2008.

[21]     All the reports establish that you have been a model prisoner, achieving a minimum security rating.  You have never been identified as a drug user.  You are reported to interact well with peers and staff alike.   You have obtained NCEA qualifications and developed skills in art and carving.  Among other things, you have participated in schemes that have raised substantial sums for victim support and women’s refuge.   You are hoping to complete a diploma in Maori art and design with Open Polytechnic.

Finite prison sentence

Approach

[22]     I turn now to consider what would be an appropriate finite prison sentence for your offending.  It is necessary that I do that before I consider the issue of preventive detention.

[23]     Sentencing for serious sexual offending is now governed by the tariff case of R v AM.1   The Court of Appeal has said that the guidelines it has laid down should be applied to all sentencing that takes place after 31 March 2010 (including sentencing for historic offending).   The Court has acknowledged that this may mean that offenders may receive lesser sentences than would previously have been imposed while others may receive longer sentences.

[24]     Recently in R v Shepherd2 Dobson J observed that in cases of historic sexual offending it may be necessary to compare the outcome reached under R v AM with comparable sentences imposed at the time of the offending in order to ensure that the sentence is not out of keeping with prevailing sentencing levels.   That is not of material concern in your case because the tariff, or the maximum sentence available for rape has not changed since 1996 when you were sentenced.

Aggravating features

[25]     In AM a number of aggravating features were identified which have a direct bearing on the appropriate starting point for sentence.   Those which have direct relevance to your sentence are as follows.

[26]     First, the harm to the victim.  The violence which is inherent in any form of sexual offending was aggravated in your case by the physical and psychological injuries inflicted, the fact that the sex was unprotected, the impact on the victim’s daily life and also the effect on her mother.

[27]     The   second   aggravating   feature   is   the   high   level   of   planning   and premeditation.  You have accepted the summary of facts and it is obvious from those facts alone that you had prepared carefully this offending.  You had staked out the house and  you had had the victim under surveillance for some time.   You had equipped yourself with the balaclava.  You chose a time when you knew the victim’s mother would not be present, something which only happened once a week or so. As I mentioned when I was recounting the facts, you talked to the victim about

1           R v AM (CA27/2009) [2010] 2 NZLR 750 (CA).

2           R v Shepherd HC Palmerston North CRI-2009-454-13, 15 September 2010 at [10]–[12].

things that you could have only known as a result of what you learned, for example, the sort of car her boyfriend drove.

[28]     Thirdly, there is the violence that was used and threatened, which was more than the “mild” level of violence inherent in the offending, to adopt the terminology of the Court of Appeal in AM.  You threatened the victim with a knife and punched her numerous times, although she offered little resistance.

[29]     Next  there  is  the  fact  that  the  offending  involved  home  invasion  –  the unlawful entry into and presence in the dwelling place.

[30]     A further aggravating feature is that you detained the victim by tying her up with bed clothes in order to give you time to get away.

[31]     And, finally, there is the scale of the offending.   As I mentioned, it lasted approximately an  hour.    It  included  a  range  of  degrading sexual  violations.    It obviously would have been a terrifying and humiliating experience for the victim.

[32]     There are no mitigating features of the offending.

Sentencing bands

[33]     In AM the Court of Appeal identified three bands for sentencing purposes. The band into which I am satisfied your offending falls is rape band three.   That applies when the offending involves two or more of the factors which increase culpability to a high degree or more than three factors to moderate degree.    It includes particularly cruel, callous or violent single episodes of offending involving rape.  The range of starting points for a rape in that category is between 12 and 18 years.

[34]     Ms MacDonald, for the Crown, submits that a starting point in the lower to middle range of band three is appropriate.   She suggests 12 to 14 years.   Your counsel, Mr Thinn, suggests 12 years which is right at the bottom of the range or

near the top of rape band two.  Having regard to the examples discussed in AM to assist an evaluation, one which is comparable is R v Amohanga.3

[35]     I consider that a starting point at the lower end of the range is appropriate.  I consider that a term of 13 years fairly captures the totality of your offending.  That is not out of line with sentences for offending involving similar levels of culpability that were imposed in the 1990s.  Aggravating factors could readily increase a starting point of eight years which applied then to 13 years.  An example is the case of R v V4 which was cited in R v AM.

[36]     An uplift in sentence is required to reflect your earlier offending.  I consider two years appropriate for that purpose.  That takes me to a starting point sentence of

15 years before mitigating factors.

Mitigating factors

[37]     The only mitigating factor is your early plea of guilty.  You entered the plea at the earliest opportunity.   As you have heard in the course of exchanges with counsel, the Crown has ventured the view that your initial denials and refusal to give a voluntary DNA sample should prompt me to consider reducing the discount from

33 per cent as prescribed in the case of R v Hessell.5    As I have indicated, I do not

think that would be a principled response.  It would be wrong to effectively increase your sentence because you chose to exercise your legal rights including, in the circumstances explained to me by Mr Thinn, your right to challenge the application for a compulsory DNA sample.

Result

[38]     Applying the discount of one-third to the sentence of 15 years reduces the finite prison sentence that I will impose, subject to a consideration of preventive detention, to one of 10 years.

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

4           R v V CA442/94, 23 May 1995.

5           R v Hessell [2010] 2 NZLR 298 (CA).

[39]     As the offending occurred before the commencement of the Sentencing Act on 30 June 2002, s 153 of the Sentencing Act applies.   As the Supreme Court confirmed in R v Mist,6  a sentence of preventive detention may be imposed under s 153 only if the offender qualifies for such a sentence under both s 75 of the Criminal Justice Act 1985, which was in force when the offending occurred, and s 87 of the Sentencing Act.

[40]     I am required to be satisfied that I both could have and would have sentenced you to preventive detention under the law as it was before the Sentencing Act came into force.  A three-step process was adopted by MacKenzie J in R v Matakatea.7

[41]     The first step is to consider whether the offences with which you are charged or any of them are specified offences under s 75(4) of the Criminal Justice Act. Next, to consider whether you would have been eligible for preventive detention under s 75 of the Criminal Justice Act.  Finally, I will need to consider whether a Court sentencing you under the old Act would have sentenced you to preventive detention.

[42]     The first and the second requirements are satisfied.  Two of the offences of which you have been convicted are specified offences under s 75(4) of the Criminal Justice Act.   They are the counts of rape and unlawful sexual connection.   You would have been eligible for sentence under s 75 as you were older than 21 years when the offences were committed.  The third requirement involves a consideration of whether it is expedient for the protection of the public that you be detained in custody for a substantial period and that I be satisfied that there is a substantial risk that you will commit a specified offence on release.

[43]     It is convenient for me to consider those criteria by reference to the tests which apply under s 87 of the Act.   For that purpose I have been provided, in addition to the pre-sentence report – both for your current offending and the earlier

6           R v Mist [2006] 3 NZLR 145 (SC).

7           R v Matakatea HC Wellington CRI-2009-085-4227, 23 April 2010.

offending – with a psychological report prepared by Ms Kim Bradley and a psychiatric report prepared by Dr Krishna Pillai.

[44]     Section 87 of the Sentencing Act requires that I take account of five specific factors before deciding whether a sentence of preventive detention should be imposed.

Pattern of serious offending

[45]     The first is a pattern of serious offending disclosed by your history.  In one sense, the two lots of offending are strikingly dissimilar.  The Crown points to some superficial similarities –  your preoccupation with cleanliness and  your desire or belief that your victims should enjoy what you were doing to them – but, fundamentally, the two lots of offending are really very different in kind, in my view.  One was the prolonged abuse of a juvenile family member and the other, the one-off rape of a stranger.

[46]     Yet, as the health assessors agree, the drivers of both categories of offending are likely to be the same.  Ms  Bradley described it as “a fusion of aggressive and sexual drives and a vindictive eroticisation of aggressive behaviours”.  She went on to say that while you describe the offending for which I am sentencing you as compulsive and opportunistic, it appeared planned, premeditated and motivated by anger (a “misogynistic” anger towards women) and a fusion of sexual aggressive drives.  There are also, as Ms MacDonald has pointed out, common features to the offending of careful planning and a complete lack of empathy for the feelings of the victim.

Seriousness of harm caused to the community

[47]     The next factor is the seriousness of harm caused to the community.   The impact on the victim has been discussed.   There is also, as Ms MacDonald has submitted, the wider effect of fear engendered in the community and the consequential restrictions on the lives of girls and women in our society.

[48]     The  third  factor  is  information  indicating  a  tendency  to  commit  serious offences in the future.   Both health assessors assess you as at high risk of sexual offending in the future.   That is based on  your history and is supported by an evaluation of static and dynamic risk factors.  These assessments, however, take no account of the effect of treatment or changes which may occur as a result of the efluxion of time and changes in your own attitude.

[49]     On that issue, it is relevant that you have yet to undertake any specialist rehabilitative treatment to address your offending.  Your placement on the Te Piriti Special Treatment Programme for child sex offenders was postponed in light of your pending sentence today.  The health assessors say that in light of this offending, your suitability for that programme will require reassessment and I will have something to say about that later.

[50]     What  Ms  Bradley  said,  however,  is  this,  as  far  as  the  possibility  that treatment could modify the risk.  She says:

While it is anticipated that Mr Ngawhika’s sexual offending is underpinned by some common criminogenic needs so that effective treatment for one (victim  type)  may  also  reduce  the  risk  of  the  other,  his  suitability  for specialist rehabilitative treatment will require a comprehensive, specialist assessment by the DOC Psychological Service at a later date.  Despite his previous denial, he has since accepted responsibility and expressed a motivation to engage in specialist rehabilitative treatment to address his risk related needs and avoid re-offending in the future.

She goes on to say:

While the type and length of sentence is ultimately the mandate of the Court, in light of Mr Ngawhika’s lack of opportunity to undertake offence related treatment to date and his expressed motivation to engage, it may be that a determinate sentence with specialist rehabilitative treatment and community based  supervision  would  be  sufficient  to  mitigate  and/or  manage  his potential risk.

[51]     To not dissimilar effect, Dr Pillai says, having referred to your high risk of reoffending:

However  this  “high  risk”  is  modified  by  a  number  of  factors.    Firstly, Mr Ngawhika has characteristics which suggest he will be receptive to sex offence specific treatment.   These include his motivation, consistent expression  of  remorse,  intelligence  and  social  skills.     To  this  date Mr Ngawhika has not had the opportunity to access such treatment and as such it is difficult to conclude that he will not benefit and the high risk not be moderated.

Secondly,  Mr  Ngawhika’s  ability  to  maintain  positive  relationships,  his many occupational skills and talents and the absence of substance abuse difficulties suggest that an eventual return to the community will be socially and occupationally successful.  Whilst a successful community reintegration does not preclude sexual re-offending, if Mr Ngawhika were in the community complying  with  a  treatment  program targeting prevention  of relapse, social stability and a strong vocation would aid his adherence to treatment and be in itself a strength and motivation to remain offence free.

[52]     Ms  MacDonald  warns  against  reliance  on  your  claims  of  remorse  and motivation to change.  Her scepticism is not entirely surprising but I would hesitate before rejecting the shared assessments of the health professionals, both of whom were very much alive to your ability to dissimulate and obfuscate.   Dr Pillai in particular, referring to your social skills and ability to obfuscate and manipulate those around you, said you were a very difficult man to interview and assess.

Absence of efforts by the offender to address the cause of offending

[53]     The fourth factor which I am required to consider are the absence of efforts by the offender to address the causes of offending.  Ms MacDonald has questioned the  sincerity of  your stated  attempts  to  rehabilitate  yourself and,  in  her  written submissions, questioned whether you could have undertaken treatment at an earlier stage.

[54]     I am aware, however, and Mr Thinn has submitted, that the Department of Corrections’ policy is to delay specialist treatment programmes until a parole date is approaching and I have no doubt that it was appropriate to defer any treatment pending your sentence today.   I accept that there may be cause to question your somewhat   belated   willingness   to   confront   your   offending,   but   that   was   a consideration that was very much at the forefront of the minds of the two health assessors and, ultimately, did not affect their assessment, that appropriate treatment could have the effect of managing the risk.

[55]     Finally, I need, in a sense, to bring all these factors together and to consider, under the final head,  whether  a finite sentence will be sufficient to protect the community.    The  principle  articulated  in  the  Act  is  that  a  lengthy  determinate sentence is preferable if it provides adequate protection to society.

[56]     As I have indicated, the finite sentence I would impose would be 10 years. This is on top of the 12-year sentence that you are currently serving and of which you have served approximately half.  It would mean that you would not be eligible for  final  release  for  another  16  years  or  until  you  were around  the  age  of  60. Obviously, that release date could be brought forward significantly if the Parole Board were satisfied that you did not pose a danger to the community.

[57]     I am mindful of the concern that your undoubted intelligence and social skills could themselves constitute something of a risk to potential victims.   But I must balance  that  against  the  qualified  optimism  of  the  health  professionals  that  a treatment programme may well be successful.

[58]     Having  regard  to  those  considerations,  I am  not  satisfied  that  there  is  a substantial risk that you would commit a specified offence on your release.  I have come  to  the  view  that  the  community  can  be  adequately  protected  by  a  finite sentence.  That is what I propose to impose.  The Crown’s application for a sentence of preventive detention is, accordingly, declined.

Minimum period of imprisonment

[59]     That takes me to a consideration of whether I should impose a minimum period of imprisonment, in order to impose a sentence which would hold you accountable to the community, sufficiently denounce your conduct and meet the interests of deterrence and the protection of the community.

[60]     I am satisfied that a minimum period of imprisonment is necessary to achieve those purposes.  The minimum period I propose to impose is one of six years.

Sentence

[61]     Mr Ngawhika, if you would stand up at this point I will formally impose sentence on you.

[62]     On the count of rape, you are sentenced to 10 years imprisonment.  On each count   of   unlawful   sexual   connection,   you   are   sentenced   to   seven   years imprisonment.   On the counts of aggravated burglary, aggravated wounding and injuring with intent to cause grievous bodily harm, you are sentenced to six years imprisonment.  All of those sentences are to be concurrent.

[63]   On the count of rape, you are required to serve a minimum period of imprisonment of six years.

[64]     As suggested by Ms Bradley, I recommend that during the course of your sentence you undertake a comprehensive specialist assessment to determine the most suitable rehabilitative treatment type as a prelude to undertaking intensive specialist rehabilitative treatment  such  as  that  offered  at  Te Piriti Special  Treatment  Unit (Child Sexual Offenders) and/or the Puna Tatari Special Treatment Unit (Adult Sex Offenders) at Spring Hill Prison.

[65]     That concludes my remarks, Mr Ngawhika.  You may stand down.