R v Olver

[2012] NZHC 706

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-263-000072 [2012] NZHC 706

THE QUEEN

v

JACOB OLVER

Hearing:         17 April 2012

Appearances: C Macklin and S Simmers for Crown

A Schulze for Prisoner

Judgment:      17 April 2012
Charges:         Sexual violation by rape x1,

Sexual violation by unlawful sexual connection x1
Aggravated burglary x1
Kidnapping x1
Intentional damage x1

Plea:               Guilty

Sentenced:     17 April 2012

Sexual  violation  by  rape  and  sexual  violation  by  unlawful sexual connection – eight years’ imprisonment

Aggravated    burglary     and    kidnapping     –    three    years’

imprisonment;

Intentional damage – one year imprisonment. All terms concurrent

SENTENCING NOTES OF VENNING J

R V JACOB OLVER HC ROT CRI-2011-263-000072 [17 April 2012]

Solicitors:         Crown Solicitor, Rotorua

Copy to:           A Schulze, Rotorua

[1]      Jacob Olver you are for sentence in this Court having pleaded guilty to one count of sexual violation by rape, one count of sexual violation by unlawful sexual connection, one count of aggravated burglary, one of kidnapping and one of intentional damage.  I note there were two other charges from the Youth Court before the Court but on the Crown’s application they have been withdrawn.

[2]      The counts of sexual violation by rape and sexual violation by unlawful sexual connection carry a maximum term of imprisonment of 20 years.  I summarise your offending from the summary of facts as follows.  The victim was at the time a

72 year old widow living on her own.  At the time of the offending you were 16 years old. You are now 17. You knew the victim as you were friends with two of her grandchildren.

[3]      At about 3 o’clock in the morning of Friday 25 March 2011 you went to the victim’s home armed with a knife.  The knife was variously described as a filleting knife or having a blade of about 200 millimetres.  You also had a torch.  You were wearing a mask and a hood over your face, the only purpose of which must have been to prevent you from being identified.   You entered the house through a rear door and made your way through the house towards the victim’s bedroom.  She was woken by you walking through the hallway and saw the torch light.

[4]      You went  into the victim’s bedroom and  said  “Keep  quiet  and don’t  do anything because I’ll kill you.  I’ve got a knife”.  She could see the blade of the knife in the torch light.  Understandably she was scared and did what she was told.  You told her to take the blankets off, take off her underclothes and her top.  She followed your instructions and took all her clothing off.   While she was doing that  you removed your clothing on the lower part of your body but kept your mask on.  You momentarily placed the knife on her walking frame which was near her bed but quickly picked it up again.  You shone the torch around the room and into her eyes.

You told her to spread her legs and to put a pillow over her head.  You told her that you were just out of Waikeria and you were 35 and had children.  You then got on top of her and endeavoured to place your penis into her genitalia.   You were inexperienced and only semi erect but still managed to penetrate to the outer extent of her lips. You did that for a short period but then stopped. You then put your penis into her mouth forcing her to perform oral sex on you.  Again after a short time you withdrew your penis and began to dress yourself.

[5]      When you were dressed you said that you wanted her car keys.  The victim was scared of you and told you just to take it.  You told her that no, she was coming too.  You made her get dressed and asked her where some socks were.  She said she did not need any socks and you said “I need some socks”.  You put them on your hands, obviously in an attempt to avoid detection.   While the victim was getting dressed you cut a section of the sheet out of her bed telling her you did not want to leave your DNA behind.  You then walked her through the house, walking behind her, holding onto the knife at all times.  She said she needed a drink of water.  You asked if she needed her inhaler or pills.  You were aware from your familiarity with her that she required an inhaler and was on medication.

[6]      You told the victim that she had to come with you because otherwise she would call the police.   You made her get into the car but before doing that you operated the kiddilocks in the back doors of the car and made her get into the back seat to prevent her from getting out or opening the car doors from the inside.  You then drove towards Rotorua in the victim’s car.   You drove in a stupid and irresponsible way doing burn-outs and skids at every opportunity.   Black smoke came from the wheels of the car.  After a period of carrying on like that you told her that you needed petrol.  You told her to get into the boot.  She said she wouldn’t fit, so you told her to lie down in the back and to cover herself up with a jacket.  Again, she was frightened of you and did what she was told.  While you were in a petrol station she felt that she couldn’t do  anything to  draw attention to her situation because she was frightened of what you would do.  She remained lying down and concealed on the back seat. After getting more petrol you then continued to do more burn-outs and skids on a number of streets.  You threw the knife and a screwdriver that had been in the car out of the window, again in an effort to avoid detection.

[7]      After further irresponsible driving involving burn-outs and skids you stopped the car and walked to your home leaving the victim in the back of the car.   She managed to get out of the back seat and drove the car back to her house.  She was completely traumatised and upset by what had happened to her. After some time she was able to compose herself and rang a family member who alerted the police.  In the meantime you had gone to a friend’s place and went to bed and slept.

[8]      The next day you saw a son of the victim who was known to you.   He outlined what had happened to his mother and you expressed surprise.  When you went home you discussed matters with your mother and said that you’d been forced to go to a petrol station by others.  You asked her to ring the police.  When you were spoken to by the police you initially denied involvement in the incident but later admitted you went to the victim’s home but denied sexually violating or attacking her.

[9]      The victim did not require hospital treatment but was required to undergo an invasive medical examination.  She sustained bruising to one of her thighs and her breast.  As a result of the way you had driven the car, her car was damaged to such an extent that it was written-off for insurance purposes.

[10]     While the victim was not badly or physically injured during the incident, the incident had a terrible and chilling effect on her.  I hope your counsel has discussed the victim impact reports with you.  Your actions on the night have led to the victim being afraid to be on her own at night.  She had to leave her home of many years. She had to give up her dog.   She has lost independence.   Her family have been affected and have had to change their lives to care for their mother.  They themselves have been affected psychologically by this incident.  There have been financial and emotional consequences which are ongoing.

[11]   Before this incident you were living with your mother.   Your mother acknowledges that at the age of 16 you drank heavily and that your father figure was associated  with  the  Mongrel  Mob.     Your  mother  has  struggled  with  setting boundaries for you.  You have acknowledged anger issues.  The pre-sentence report discloses your self reported use of alcohol indicates a considerable and regular level

of binge drinking every couple of days.  Your self reported use of drugs indicated daily use of cannabis at the time. You have previous appearances in the Youth Court for the use of methamphetamine.  You have used violence, threats and intimidation in order to obtain what you want in the past.  As the pre-sentence reporter notes the use of a knife in order to threaten the victim is of concern, indicating an increase in the seriousness of your offending.

[12]     It is difficult to understand how someone at the age of 16 could act in the way that you have acted.   Your mother described a relatively normal childhood development until about the age of six when your grandfather died suddenly and your father left and went to Australia.  From then on you have shown increasingly oppositional, defiant and aggressive behaviour which impacted on your ability to maintain your education and to form proper peer relationships.  You were excluded from  high  school  for  severe  behavioural  problems.    Your  mother  sent  you  to Australia in the hope that your father would be able to manage you.  But your father effectively  rejected  you  and  abandoned  you.    You  ultimately  returned  to  New Zealand.  Since your return you have lacked any sort of social male role model and effective  boundaries  and  you  have  not  engaged  in  education  or  any  form  of structured activity. You have led a directionless life involving drugs and alcohol.

[13]     The pre-sentence reporter notes that in relation to your offending you display a sense of entitlement. You acknowledge you use threats and intimidation to achieve what you want. You sought to minimise the offending, describing it as impulsive but it clearly was not impulsive given the circumstances of going to the victim’s home at

3 o’clock in the morning, disguised as you were, carrying a knife and a torch.

[14]     Your likelihood of re-offending is assessed as high. I note at the time of this offending you were under a supervision order from the Youth Court.

[15]     You have been assessed by Youth Forensic Services.  Their conclusion is that there is no clear evidence of mental illness or cognitive disability and no ongoing specific mental health treatment requirements, apart from of course the obvious need for alcohol  and  drug counselling.   You  have limited  adaptive coping  strategies, particularly when stressed and the common response is your sudden escalation in

irritability and anger.  Those are issues you will have to address if you are going to reintegrate into society in future.

[16]     In sentencing you the Court is required to take into account the purposes and principles of the Sentencing Act which in this case are particularly:

to hold you accountable for the harm done to the victim and the community by offending of this nature.  People should be secure in their homes at night

and secure from attacks of this nature;

to promote in you a sense of responsibility for and acknowledgement of that

harm that you have done;

to provide for the interests of the victims;

to denounce conduct such as this;  and

todeter you and others from committing the same or similar offending and to protect the community.

[17]     I am also required to consider:

the gravity of the offending, including the degree of culpability, which in this case requires me to consider your personal circumstances and age and lack of

maturity;

the seriousness of the offending, which is indicated by the maximum penalty

imposed by Parliament of 20 years;  and

consistency between this sentence and other sentences imposed by the Court.

[18]     You  have  heard  the  submissions  made  by  the  Crown  and  your  defence counsel.       The Crown submit that in light of the leading authority of R v AM[1]  a

starting point for all of the offending in this case of between 13 and  16 years’ imprisonment would be appropriate.  The Crown acknowledges that there must be reductions to take account of your age and your guilty pleas.

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

[19]     Mr Schulze in his very full and detailed submissions has submitted that a starting point of between 10 and 12 years would be appropriate were you to be sentenced  as an  adult but argues strenuously for a significant  reduction to take account of your personal circumstances and guilty pleas.  He submits a final result of four to six years’ imprisonment is appropriate.

[20]     I take in terms of fixing a starting point for your sentence the charge of rape as the lead offence.  I am then required to take account of and fix a sentence which reflects the totality of your offending in this case.

[21]     The particularly serious and aggravating features in this case are:

the vulnerability of the victim at 72 years old living alone at home, known to

you to require medication and to be at least partly immobile;

the home invasion by you in the early hours of the morning;

the degree of planning involved to the extent that you went to the trouble of disguising yourself and arming yourself with a weapon to overcome any

resistance;

the degree of violation which, while temporary, nevertheless involved the

unlawful sexual connection, the oral sex, as well as the rape,

the harm to the victim.

[22]     Taking those factors into account, I consider that for that sexual offending, without taking account of the other charges, being the burglary, kidnapping and intentional damage, a starting point of 10 to 11 years would be appropriate.  There must then be an uplift for the other offending I have referred to.  The kidnapping was a sustained period of detention.  You continued to detain the victim by threatening

her with the knife.   You kept her locked in the back of the car and she was so frightened she did not try to escape or draw attention to herself when at the petrol station.

[23]     I am aware of the need not to double-count and to consider totality.  I take 12 years as the appropriate starting point to reflect all of your offending in this case. There must then be a further uplift, however, for your personal aggravating circumstances namely that you committed this offending whilst subject to a sentence of supervision.  I add six months for that.  That leads to a start point of 12½ years’ imprisonment before considering your personal mitigating factors.

[24]     In relation to that there are two principal mitigating factors, one your age and the other your guilty pleas.  In relation to your age the Court of Appeal in the case of Churchward v R[2]  have noted that youth is relevant to sentencing because of age related neurological differences between young people and adults, noting that young people may be more vulnerable or susceptible  to  negative influences  and  more impulsive than adults, the effect of imprisonment on young people, including the fact

that long sentences may be crushing, and that young people have the potential and greater capacity for rehabilitation, particularly given that the character of a young person may not be as well formed as that of an adult.

[2] Churchward v R [2011] NZCA 531

[25]     I note, however, in your case as I have earlier said, you have been assessed by Forensic Services which has not disclosed any particular or specific mental illness or mental health issues.  It is really your lack of maturity and young age which must inform the basis of the initial reduction, which I am obliged to consider.  I consider in your case a reduction of 20 per cent for those personal factors – your age, lack of maturity and the other factors I have referred to that the Court of Appeal addressed in Churchward.

[26]     I then take into account the guilty plea and the issue of remorse.  You have heard my discussion with your counsel.   I frankly do not see on the information before me that you have a sufficient understanding of what you have done to actually be properly remorseful to the extent that any reduction is required or appropriate for

genuine  remorse  as  the  Supreme  Court  discussed  that  concept  in  Hessell  v  R.[3]

However, I do accept, as your counsel has said, that you made an offer to attend a restorative justice meeting.   I can well understand why the victim and her family declined such an offer but I accept it was an offer made on your behalf which, if it had been accepted, would undoubtedly have been difficult for you.  I take that into account as much as I can.

[3] Hessell v R [2010] NZSC 135

[27]     I also take into account your guilty plea.   Your guilty plea has spared the victim the further trauma of a trial and it has also spared the state the cost of a trial. Against that, it frankly has to be said the Crown case against you was a strong case and  your plea came at  a late stage.   In all the  circumstances  I allow a further reduction of 20 per cent to take account of your guilty plea and your offer of a restorative justice meeting.

[28]     Please stand.   On the sexual violation by rape charge you are sentenced to eight years’ imprisonment.  On the sexual violation by unlawful sexual connection you are sentenced to eight years’ imprisonment.  On the aggravated burglary charge you are sentenced to three years’ imprisonment.  On the kidnapping charge you are sentenced to three years’ imprisonment.  On the intentional damage charge you are sentenced to one year imprisonment. All terms are to be served concurrently.  I have considered whether a minimum term of imprisonment is required.  Bearing in mind the circumstances of this offending and your particular circumstances I am satisfied that the length of the sentence is such that it does not require a minimum term of imprisonment.

[29]     The effective sentence of the Court is eight years’ imprisonment. Stand down.

Venning J