R v Peke Ca38/04

[2004] NZCA 398

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 38/04

THE QUEEN

v

RICHARD TAMATI PEKE

Hearing:         26 August 2004 Coram:  Chambers J

Williams J Panckhurst J

Appearances: K L Tustin for Appellant

A Markham for Crown Judgment:       7 September 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Issue

[1]    Following his plea of guilty on 1 December 2003 to one count of sexual violation by rape, the appellant, on 21 January 2004, was sentenced to nine years imprisonment.

[2]    This judgment deals with his appeal against that sentence on the basis it was manifestly excessive.

R V PEKE CA CA 38/04 [7 September 2004]

Facts

[3]    The summary of facts said in the early hours of 10 August 2003 the victim and her partner returned to their Huntly home. She retired to bed while her partner fell asleep on the floor alongside. Mr Peke entered the house some time later and removed the bedroom light bulb. His fingerprints were later found on it. He then aroused the victim and had full intercourse with her including ejaculation. Initially there was no resistance, she believing he was her partner. She then realised her mistake.

[4]    Initially, despite Police efforts and considerable publicity, identity of the assailant could not be established. However, on 23 October 2003 ESR found a Databank match with Mr Peke on DNA analysis. The match was inadmissible but provided the basis for a suspect compulsion order. Such an order was applied for.  Mr Peke consented, apparently believing it would be exculpatory since he denied the rape or even entering the victim’s address. He was wrong. He pleaded guilty on his first court appearance after the suspect compulsion order sample had been analysed, despite continuing to claim remembering nothing of the incident.

Judgment under appeal

[5]    Judge Wolff reviewed the facts, the contents of the probation officer’s report, the victim impact statement and the emotional harm report. Reviewing sentencing principles he said (para 11) that an aggravating feature was that “although you have not been charged with it [the rape charge] involved the unlawful entry into a building”. Other aggravating features included emotional harm to the victim, a breach of trust “in that you were a member of the complainant’s extended whanau” and took advantage of her, a substantial list of previous convictions including burglary but no other sexual offences, and the degree of premeditation involved in removal of the light bulb.

[6]    Mitigating features identified included pleading immediately after the DNA analysis and a certain remorse shown in a letter handed to the Court.

[7]    After referring to authority later discussed, the nub of the remarks on sentencing read :

[18]The particular features of this case are the breaking and entry into the home, the invasion and the secrecy in taking advantage of a family member, whom I infer that you knew to be possibly suffering the effects of alcohol. Generally for an uncontested rape, the start point would be a term of 8 years imprisonment. The additional features of the breaking into the house and taking advantage of her while asleep, suggests to me that it is appropriate to start, in your case, at a term of 10 years imprisonment.

[19]You are however, entitled to a credit for your early plea of guilty, and I take that into account in a reduction of 12 months from that sentence. Often a plea of guilty would attract a larger deduction than that, but in fixing the sentence I take into account the aggravating features that I have mentioned, and that the balancing out of those matters I am satisfied that it would be inappropriate to over-weight the deduction for the early plea of guilty, particularly in the light of the inevitability of the conviction, in view of the strength of the Crown case. That does not overlook however, your recognition of the harm that has been done to the complainant.

[20]I am satisfied that in your case then that the appropriate sentence to impose is a term of imprisonment of 9 years.

No minimum term of imprisonment was imposed despite a Crown request.

Submissions

[8]For Mr Peke, Ms Tustin submitted the Judge was in error in :

a)referring to a starting point of eight years for an “uncontested rape”, that being the starting point for sentencing following conviction after a defended rape trial;

b)finding as an aggravating feature the suggested breach of trust in relation to the “extended whanau” and knowledge the complainant may have taken alcohol;

c)treating the trauma of the victim as an aggravating feature when there was no evidence of trauma beyond that often encountered in such charges;

d)allowing inadequate credit for the very early plea, expressions of remorse and co-operation with the Police.

[9]    Counsel accepted however that the major aggravating features in this case were entry into a private home and taking advantage of a sleeping complainant.

[10]   Ms Tustin submitted the Judge was in error in allowing only a 10% reduction for the mitigatory features. She submitted a one-third reduction would have been appropriate, particularly given the timing of the plea, the consequent relief for the victim and the saving of resources.

[11]   For the Crown, Ms Markham submitted the Judge’s identification of the aggravating features was correct. Unlawful entry into a victim’s home has long been regarded as an aggravating feature (R v Palmer [2000] 1 NZLR 546), further aggravated in this case by surreptitious entry in the early hours of the morning for the purpose of rape. She drew attention to the deliberation and premeditation reflected in the removal of the light bulb and taking advantage of an intoxicated and initially sleeping victim, again well-recognised as an aggravating feature (R v Donaldson (1997) 14 CRNZ 537, 548). She drew attention to the relationship between the complainant and the appellant - though Ms Tustin said the appellant is no more than the brother of the victim’s uncle’s wife - the serious effect on the victim and the large number of previous convictions. They totalled over 60 in number including 17 for burglary or similar offences.

[12]   Ms Markham accepted an early guilty plea normally attracts a significant discount but submitted that factor  is  diminished  where  conviction  is  inevitable  (R v Kaka CA477/94 31 May 1995 p2; R v J (CA 169/94 2 August 1994 p3). She pointed to cases  where  12½%-20%  reductions  (e.g.  R  v  Edwards  CA  363/97  15 February 1998) were upheld as appropriate and she directed our attention to rape cases where sentences of 11 and 12  years were upheld or not appealed (Palmer;     R v Parker CA 179/03 21 August 2003). Though low by comparison with many another case, a 10% reduction was in the circumstances of this matter, within range, Ms Markham submitted, even against the usual reduction for an early plea in the region of 25%-33⅓%.

[13]   Ultimately, as must be right, she submitted the question must be whether the sentence finally imposed was manifestly excessive, irrespective of the route followed to that terminus.

[14]   There is another aspect of Mr Peke’s position to which Ms Markham drew our attention and which somewhat complicates the matter. It is that on 29 November 2003, while Mr Peke was on bail before entering his plea, he committed a further burglary. He pleaded guilty but for some reason was not dealt with on that charge when sentenced for the rape.  On 10 February 2004 another Judge sentenced him to  7 months imprisonment on the burglary to be served concurrently with the rape sentence. For totality reasons the Judge took the view Mr Peke would not have been sentenced to a longer term of imprisonment had both charges been dealt with together. As Ms Markham submitted, offending on bail often results in a cumulative sentence (R v Wallace [1983] NZLR 758, 760). There is force in her submission that, as a result of the way the burglary sentencing was dealt with, Mr Peke has effectively escaped punishment for a separate offence committed on bail.

Discussion

[15]   The starting point of eight years imprisonment following conviction on a contested rape is so well known that almost certainly the Judge’s reference to that for an “uncontested” rape was merely a slip or a typographical error in the typed sentencing notes.

[16]   However, even if that is not the case, as Ms Tustin was disposed to acknowledge, a 10 year starting point, after factoring in the aggravating features identified by the Judge in Mr Peke’s case, could not be regarded as beyond range. The case involved burglary of a private dwelling by a man with a long history of burglary. Entry occurred in the early hours of the morning and when, in all probability, identity of the occupants was unknown. Given what is now known of  the distant relationship between the complainant and Mr Peke, the Judge’s description of her as a “family member” seems incorrect. Removal of the light bulb demonstrates an appreciation by Mr Peke of his circumstances coupled with a degree of premeditation and adoption of a manoeuvre calculated to avoid identification and

arrest. Though the rape was not accompanied by violence beyond that intrinsically part of the act, that was fortuitous and arose only from the victim’s mistake.

[17]   The real question on this appeal is whether the Judge erred in discounting his tentative 10 year term by only 10% for the plea.

[18]   He justified that by reference to the inevitability of conviction. Ms Tustin challenged that remark but, in reality, the Judge was right. Even though the  appellant was unable to remember the incident, the fingerprint and DNA identifications left him defenceless, a fact he recognised by his early plea.

[19]   Sentence discounts in the 25-33⅓% range are commonly allowed for very early pleas. There are cases where smaller percentages have been  imposed  or upheld but they are unusual. Despite the diligence of her research, Ms Markham was unable to direct our attention to any case where a deduction as small as 10% for a very early guilty plea has occurred.

[20]   Since it is important that appropriate sentence deductions continue to be allowed for the recognition of responsibility entailed in early pleas, the view must accordingly be in Mr Peke’s case that the Judge erred in allowing so small a discount as 10%. It must follow that the nine year term imposed was manifestly excessive. The Judge appears to have made such a small discount because of “the aggravating features” he had mentioned. But that, with respect, leads to, if not a double counting of the aggravating circumstances, an over-weighing of them. The aggravating features have been fully acknowledged in the uplift in the starting point to ten years.

[21]   That said, a factor influencing the amount by which the term should be reduced is, however, the fact Mr Peke has effectively not been sentenced for his unrelated burglary committed on bail.

[22]   Assessing the position overall, in our view the appropriate discount for the early plea of guilty for Mr Peke would be 20% off the Judge’s 10 year starting point.

[23]   The   appeal   is   accordingly   allowed   and   a   sentence   of    eight   years imprisonment substituted for that imposed in the District Court.

Solicitors:

Crown Law Office, Wellington