R v Petera
[2013] NZHC 2170
•23 August 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2012-029-000462 [2013] NZHC 2170
THE QUEEN
v
BRIAN PETERA
Hearing: 23 August 2013 Appearances:
M B Smith and C Anderson for the Crown
C S Cull for the DefendantJudgment:
23 August 2013
SENTENCING NOTES OF WOOLFORD J
Solicitors: Crown Solicitor (Marsden Woods, Inskip & Smith), Whangarei.
C Cull, Barrister, Kaikohe.
R v PETERA [2013] NZHC 2170 [23 August 2013]
Introduction
[1] Mr Petera, you appear for sentence today on the following charges: (a) Attempted sexual violation by rape;
(b) Sexual violation by rape;
(c) Indecent assault; (d)
A (representative) charge of sexual violation by unlawful sexual connection; and
(e)
A (representative) charge of indecent assault on a girl under 12.
[2]
The
maximum penalty for sexual violation is 20 years imprisonment. The
maximum sentence for attempted sexual violation and indecent assault on a girl under 12 is ten years imprisonment. The maximum penalty for indecent assault is seven years imprisonment.
Offending Against A
Count 1: Attempted sexual violation by rape
[3] Between 1 January 2004 and 1 January 2005, A was either 13 or 14 years old. On one occasion after midnight, you were quite intoxicated and asked A to drive you both home. As A was driving, you put the car into neutral on purpose twice.
[4] You climbed over towards A, who began to open the door in panic. Before she could get out, you had run around the front of the car and wrenched her by the leg so she was lying half in and half out of the car.
[5] You pulled off A’s shorts and underwear. She began to scream and shout for her mother and grabbed onto the steering wheel so you could not pull her completely out of the car. She pressed the horn as much as she could at the same time as she was kicking and writhing so that you could not control her.
[6] She kept fighting against you and sounding the horn until you backed away long enough for her to scramble over to the passenger seat. Once she was in the passenger seat you got into the driver’s seat and you both sat in silence for some time, with her still naked from the waist down. Then, you said “Let’s just do this.”
[7] A was in shock and could not get away. You climbed over and wrenched her groin area by the hips towards your penis. You began thrusting your penis at her vagina. She grabbed a netball jacket and put it over her face, sobbing so that she would not have to look at you. You continued to thrust, but when you failed to maintain an erection you eventually gave up.
[8] This incident caused some bleeding and severe bruising and pain to her back.
Count 2: Sexual violation by rape
[9] On another occasion between 1 January 2004 and 1 January 2005, A was standing in the lounge room in her nightie, alone at the family home. She saw you arrive and park outside the gate. She was scared and felt unable to move.
[10] You went straight to the lounge where A was and grabbed her, pushing her onto the couch. You pushed her nightie up and pushed her underpants down her legs. You said “Let’s just finish this!” You put on a condom and then raped A. She covered her face with her nightie. She began crying and waited for you to finish.
Offending Against B
Count 3: Indecent assault
[11] Between 25 December 2011 and 15 January 2012, B was 15 years old. She was living at your sister’s address. During this time, you would visit the address often. On one occasion, you visited when everyone had been drinking alcohol. B’s sister took her to her own bed to sleep as she was aware that she was quite intoxicated. At some stage that evening B went back to her own bed.
[12] She was woken up by you lying on top of her between her legs and rubbing her clitoris through the outside of her underwear with your hand. You began to slide
your finger under the side of her underwear. When you realised that B was awake you immediately got off the bed and left the room.
Offending Against C
Counts 4 and 5 (representative charges): Sexual violation by unlawful sexual connection and indecent assault
[13] Over a number of years, between 30 March 1994 and 29 March 1998, C would lie in bed and hear you approach. You would reach under the blankets and rub the outside of her vagina. You would then insert your fingers into her vagina. She was scared to go to sleep at night due to her fear that you would come into her room and touch her when she was asleep. This happened on many occasions over a number of years.
Victim Impact Statements
[14] The Court received four victim impact statements from A, B and her father N
and from C.
A
[15] A says you changed the bubbly and outgoing girl that she once was. She admired and adored you and you betrayed the trust and love she had for you. She has emotions of hatred, anger, betrayal and guilt because of your actions. You have brought shame and hurt upon her. She has suffered nightmares, depression, self- harm, anxiety and hatred due to your actions. For the last 9 years she has felt guilt and blamed herself. Physically violating her and taking her virginity away from her has caused her to struggle in life. At age 14 she wanted all males to keep away from her, she saw them as a threat and was scared of them. She is so thankful she was able to love and have a stable relationship. She thought after your actions that, that would be impossible. You have caused huge relationship issues in her life and have turned her into a person who hated to trust anyone who loved her. She is going to move on and succeed in her life and prove your actions wrong. She hopes that in the future you will think long and hard about what you have done and that when you are let out you will change your ways.
B
[16] B says your offending has meant that she does not feel safe around men. It has made her feel dirty, worthless and self loathing. She has felt alone as she has no one to talk to and you made her feel ugly. She has huge trust issues and has been made to feel like you are the victim and she was the offender. Her grandfather has disowned her because he thinks this problem should have stayed within the whanau. Her grandmother blames her grandfather’s illness on her for making the complaint. This assault has divided her family and made her feel guilty.
N
[17] N says that as a result of your offending his extended family has turned on him and the girls and has made things very awkward. The family has tried to discredit the complaints as much as possible. All family ties have been severed and he and the girls are no longer welcome at the family farm. He finds work stressful knowing what has happened and the severity of your offences. You were one of his best friends and he feels betrayed and like the trust is gone. He and his children have been made to feel like they have done wrong.
C
[18] C states that you have made her feel guilty for so many years. You took away her right to choose. She has lost the support of her grandparents because she has spoken out about what you did to her and she is no longer welcome at her marae. So much of her life has been consumed by her ordeal and she has wasted a lot of time, money and emotion on it. The court process has meant she has missed out on work opportunities and her boyfriend and her family and friends have been so worried about her and sorry that they trusted you and never saw the signs. She is distrusting of people. Her uncle, N, has been alienated from his father and brothers. When she was a little girl C was afraid of the dark because of what you did to her. You have made it difficult for her to emotionally connect with anyone except her family. She is proud of who she is and proud she has survived you. She never wishes to have contact with you again.
[19] May I say that I was most impressed with the way in which A, B, C and D gave their evidence. They displayed real honesty and humility as well as great courage in confronting you in person in a courtroom. They are wonderful young women who need their family’s support more than ever to help them recover from their tragic childhoods at your hands. I hope that you will now start to appreciate the terrible wrong that you have done to them. I also want to thank K and N very much indeed for the support they have given and continue to give these young women.
Personal circumstances
Prior Convictions
[20] You have six previous convictions. They are all speeding offences, except one male assaults female conviction in 1993. I put them to one side.
Pre-Sentence Report
[21] You are of Maori descent. You married your ex-wife when you were 20 years old and had a son, but you have no contact with either of them now. You had another relationship with a woman who already had one daughter, and you had two further daughters and one son with her. The relationship ceased in 2004 but you maintain contact with her and your children.
[22] Despite the guilty verdicts, you continue to deny the offending, conceding that the incidents took place but saying that “connotations are far removed from reality”. You bear no ill will to the victims but express no remorse.
[23] You are assessed at a low risk of re-offending by the Department of Corrections’ static risk assessment tool, but the report writer considers your risk of re-offending and harm to others to be high. This is because you do not accept responsibility and have no motivation to address your offending. Therefore, the report writer cannot recommend rehabilitative interventions.
[24] Instead, the report writer recommends a long term of imprisonment.
Purposes and Principles of Sentencing
[25] In sentencing you today I have taken into account a number of sentencing purposes and principles as set out in the Sentencing Act 2002. The relevant purposes I have taken into account are:
(a) holding you accountable for the harm done to your victims and the community by the offending;
(b)promoting in you a sense of responsibility for, and acknowledgement of, that harm;
(c) denouncing your conduct;
(d) deterring you and other persons from such offending; (e) protecting the community from you; and
(f) assisting in your rehabilitation and reintegration.
[26] I have also taken into account the principles of sentencing set out in s 8 of the
Sentencing Act.
Submissions
Crown Submissions
[27] The Crown submits that the Court does not need to adopt a view of the facts most favourable to you. The Court can take any view it considers reasonable.
[28] The Crown submits that the relevant aggravating features, in accordance with
R v AM,1 are as follows:
(a) Planning and premeditation:2 You engineered situations to be alone with your victims;
1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
(c) Vulnerability of the victims:4 The Crown refers to the significant age disparity between you and the victims; (d)
Harm to the victims:5 Here the Crown refers to the victim impact statements;
(e)
Scale of the offending:6 There were three victims in a course of offending that stretched between 1994 and 2012; and finally,
(f)
Breach of trust:7
[29]
The
Crown submits that the lead offence should be count 2, the rape of A,
and that the offending falls within band four in light of the vulnerability of the victims and the breach of trust. The Crown submits a starting point of 16 to 18 years imprisonment is appropriate.
[30] The Crown submits that a minimum period of imprisonment is also necessary to hold you accountable for the harm that you have done to the victims and to the community. The Crown does not suggest an appropriate period.
Defendant’s submissions
[31] Your counsel submits that a starting point of 11 or 12 years imprisonment is appropriate. She submits that the lead offence is the rape against A, which should attract a starting point of seven years imprisonment. She submits that it falls within rape band two of R v AM. Counsel acknowledges that there should be a one year
uplift for the attempted rape.
2 At [37].
3 At [38].
4 At [42].
5 At [44].
6 At [47].
7 At [50].
years for the representative unlawful sexual connection and indecent assault charges as they fall within band two of unlawful sexual connection in R v AM. She submits that a sentence of six months for the indecent assault on R is appropriate. This leads to an end sentence of 11 years and 6 months imprisonment. She submits this is not a case where a minimum period of imprisonment is appropriate.
Sentencing approach
[33] I now come to fixing the sentence. The approach I intend to follow in arriving at the appropriate sentence is that established by the Court of Appeal in several well-known cases.8 In brief, it involves considering the circumstances and seriousness of the offending you committed and setting what is known as the starting point with the aid of any guideline decisions or comparable cases. I then need to consider whether there are any mitigating features relevant to you which might
reduce that starting point.
[34] Because there is more than one offence, I need to consider which offence to focus on and what effect the other offences should have on that sentence as well.
Tariff Case: R v AM
[35] AM is the guideline judgment which applies to all serious sexual offending sentencing taking place after 31 March 2010 (at [125]).9
[36] In AM, the Court of Appeal sets out four bands of offending for rape and analogous sexual offending, and three bands for other types of unlawful sexual connection. For each band, the Court describes the features of the offending which might be present at the lower and higher end of the band. The Court also provides illustrations based on previous cases. For the present purposes, the bands set out which address rape and analogous sexual offending will be relevant to setting the
starting point.
8 R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 (CA).
9 R v AM, above n1.
Sentencing Act and that the factors listed are not exhaustive (at [34]). The factors are:
(a) Planning and premeditation: at [37], s 9(1)(i) SA
Predatory behaviour, grooming a young child, and plying the victim with alcohol or drugs will increase seriousness.
(b) Violence, detention and home invasion: at [38], s 9(1)(a) SA
Violence is inherent in the offence, but “more than mild” associated violence will increase culpability. Violence includes: physical threats, and the presence or use of weapons.
(c) Vulnerability of victim: at [42], s 9(1)(g) SA
Vulnerability factors: age, health, mental impairment, physical frailty, or the fact that the victim is the subject of a protection order.
(d) Harm to the victim: at [44], s 9(1)(d) SA
Harm is inherent in the offending, though more harmful offending will increase culpability. Harm includes: physical (cuts and bruises), unprotected sex with risk of pregnancy or infection, psychological harm, restrictions on victim’s daily life, and impact on others.
(e) Multiple offenders: at [45]
Gang rape may fall within the highest rape band despite the absence of other aggravating factors.
(f) Scale of offending: at [47], s 9(1)(e) SA
(videotaping or photographing the offending or offending while others are present) increases culpability. Prolonged offending involving multiple victims particularly in the familial context warrants a higher starting point in rape band 4.
(g) Breach of trust: at [50], s 9(1)(f) SA
Offending within familial relationships or relationships of trust increases culpability.
(h) Hate crime: at [51], s 9(1)(h) SA (i) Degree of violation: at [52]
Seriousness increases as the degree of violation increases. (j) Mistaken belief in consent: at [53]
If the belief is grossly unreasonable that will not avail the offender. But where the belief, while unreasonable, was genuine this may reduce culpability.
(k) Consensual sexual activity immediately before the offending: at [54]
In limited circumstances seriousness may decrease where the offender and an adult victim engaged in consensual sexual activity just before the offending. The relevance of this factor will depend on the type of earlier consensual activity.
(l)Offending against person with whom offender has been in a relationship: at [61]
This is not a mitigating factor.
(m) The views of the victim: at [62]
In some circumstances it may be appropriate to take into account the victim’s genuine calls for leniency; in other circumstances the victim may be influenced by pressure. No general rule can be set out. The Judge will have to weigh all the factors, keeping in mind that crime is a public wrong so the victim’s views are not an overwhelming factor.
Rape, Anal Sex, Oral Sex, Penetration with Objects: Bands
[38] AM sets out four bands of offending where rape, penile penetration of the mouth or anus, or violation involving objects is the lead offence (at [88]):
(a) Rape band one: 6–8 years (at [93])
Aggravating features are either not present or present to a limited degree.
(b) Rape band two: 7–13 years (at [98])
Two or three aggravating features are present: a moderate scale of offending, levels of violence, and premeditation. Covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence.
(c) Rape band three: 12–18 years (at [105])
Aggravating features at a serious level. Offending involves two or more of the factors increasing culpability to a high degree (e.g. particularly vulnerable victim and serious additional violence), or more than three factors to a moderate degree. This includes particularly cruel, callous, or violent single episodes of offending involving rape.
(d) Rape band four: 16–20 years (at [108])
Aggravating features of a similar type to higher band 3 cases, but involving multiple offending over a considerable period of time rather than a single instance of rape. Repeated rapes of one or more family members over a period of years, especially when involving children and teenagers, will attract a starting point at the higher end of band 4.
[39] While the Court of Appeal said its guidance in AM applies to all sentencing occurring after its release date, irrespective of when the offending occurred, that does not necessarily mean that its guidance ought to be applied rigidly to historic
offending. Dobson J held in R v Shepherd that the guidance in AM does not alter the principle that:10
... for offending that occurred a long time before the sentencing, the offender is to be sentenced by reference to sentences comparable at the time of the offending, rather than when you are being sentenced.
[40] In sentencing an offender for offending that occurred in 1994, Dobson J
considered the process of setting a starting point in two steps:11
(a) Set a starting point in terms of the guidelines in AM; and
(b)Compare that starting point with comparable sentences from the time the offending occurred to enable reconsideration in the event there was a change in the level of sentencing between then and 2010.
[41] In R v Jeffries the Court of Appeal were considering whether McKenzie J should have applied the tariff case of R v AM to offending which occurred against three complainants between 1996 and 1998, before R v AM had been issued. The Court of Appeal noted:12
We agree that R v AM should have been applied to the offending involving H, J and B. This Court in AM said that the guidelines should apply to sentencing after the date of delivery of the judgment. The Court made the point that the content of the guideline did not “differ significantly” from current sentencing practices. Some limited exceptions were identified, none of which are relevant here. In taking that approach, the Court was adopting the approach applicable to other guideline judgments. The case of R v Accused (CA463/97), applied by the sentencing Judge in this case, itself acknowledges that the observations made in that case are subject always to the maximum penalty.
[84] It may be that in a particular case, as the offending date goes back in time towards the change in the maximum, a court may consider fairness requires a different approach. That said, we do not see applying AM as directly engaging the principle of retrospectivity given the maximum penalty was the same at the time of the offending as it was when the appellant was sentenced. This approach also appears generally consistent with sentencing practice since AM.
10 R v Shepherd HC Palmerston North CRI-2009-454-13, 15 September 2010 at [10].
11 This was also the approach taken by Andrews J in R v Boyd HC Auckland CRI-2008-019-10238,
6 July 2010 at [34].
12 R v Jeffries [2012] NZCA 608 at [83]-[84].
[42] All of the offending in the present case occurred after the maximum penalties for the offending had been changed to the current penalties. Therefore in accordance with the Court’s decision in R v Jeffries the principle of retrospectivity is not directly engaged in this case. Therefore it is appropriate to apply R v AM to the offending.
Analysis
Setting the starting point
[43] There are three steps to assessing the starting point. The first is to identify which culpability assessment factors are present. The second is to determine which rape band the offending falls into, in light of the aggravating factors. The third is to determine whether the offending falls at the upper or lower end of the band, in light of the aggravating factors and case law examples provided in R v AM.
[44] I consider that there are a number of aggravating factors to your offending. There was planning and premeditation. You would seek out C when she was sleeping and then indecently assault her. You drove to A’s home with the sole intention of raping her. There was vulnerability of the victims. The victims were significantly younger than you, particularly C, who was only around eight years old when the offending started and B, who was intoxicated when the offending occurred.
[45] The scale of offending involved offending against three different victims and some of that offending was prolonged between 1994 and 1998. The offending in total spanned 1994 to 2012. Intra-familial sexual offending as occurred here, is a seriously aggravating breach of trust.
[46] The lead offence of the rape of A would place you in band two of R v AM. The Court of Appeal states that rape band two is appropriate for a scale of offending and levels of violence and premeditation which are in relative terms, moderate. This band covers offending involving a vulnerable victim. It is appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree. The rape itself involved three of the culpability factors, vulnerability, premeditation and breach of trust.
[47] The single instance of rape is not as severe as some of the rapes cited as upper band two in R v AM. In R v V the 25 year old offender smashed a window to gain entry to a retirement home unit.13 He entered the bedroom and raped the victim,
77, threatening to kill her while she screamed. In R v B the offender set upon the victim in a rage leaving her with bruises, cigarette burns and a finger that needed splinting.14 He threatened to kill her, tied her to the bed, inserted a candle into her vagina and lit it and then had anal sex with her. Both of these cases were upper band two.
[48] I consider that the lead offence of rape is appropriately placed in the middle of band two R v AM, giving a starting point of ten years imprisonment. However, it is then necessary for me to uplift the starting point to properly take account of the attempted rape of A and the other serious sexual offending against B and C. This offending was prolonged and involved very serious breaches of trust against all three victims.
[49] In R v Minnis during 1999 and 2000 the offender babysat T who was aged 12-
13 years at the time.15 He started off fondling her and then progressed to penetrating her digitally and orally. On one occasion he had full sexual intercourse with her and did not stop when she protested. The family moved away but in 2003 the offender visited the family. He helped bathe the younger girls and fondled K’s vagina. The third victim A was the youngest child of a woman who was the girlfriend of a male friend of his. On two occasions he fondled her vagina and on one occasion he blew raspberries at her pubic line while warning her not to tell anyone. The Court of Appeal considered the 17 year starting point imposed by the District Court judge too high when there had been only a single episode of rape and held that a 15 year starting point was appropriate.
[50] In Triggs v R the offending took place over three years while the complainant was aged between 7 and 10.16 The offender was a grandfather figure to the
complainant and at times was solely responsible for her care. He frequently
13 R v V CA442/94, 23 May 1995.
14 R v B CA278/04, 25 November 2004.
15 R v Minnis CA242/06, 23 November 2006.
16 Triggs v R [2010] NZCA 543.
offended against her by fondling her vagina area and digital penetration. This often culminated in rape. The Court of Appeal upheld a starting point of 15 years imprisonment.
[51] In R v AM the Court of Appeal state that the paradigm case of offending within band four is repeated rapes of one or more family members over a period of years and that especially when involving children and teenagers, this offending will attract a starting point at the higher end of band four.17 In R v Gordon the offender offended against two separate victims both aged between eight and ten years of age when he was their baby sitter.18 Between 1998 and 2000 he raped victim T twice as well as inserting his penis into her mouth and his fingers and tongue into her genitalia. Between 2006 and 2007 he licked S’s vagina, induced her to perform oral sex on him and inserted his penis into her anus. The Court of Appeal upheld a starting point of 16 years imprisonment.
[52] I do not consider this case falls within band four of R v AM because this was not a case of repeated rape although there was certainly prolonged and repeated sexual offending. I therefore consider that there should be an uplift of five years on the 10 year starting point on the lead offence of rape. This is to take into account the attempted rape of A and the particularly harrowing offending against C and the assault against B. Your offending is particularly serious because of the extreme breach of trust against these three girls who all loved and trusted you as a close family member and father figure. Not only did your offending ruin their lives, it has also divided your family and made these girls feel isolated and like liars.
[53] In light of the above cases and the aggravating factors present in your offending, I consider that a starting point then of 15 years imprisonment for your offending in its totality, is appropriate. This places your offending in the middle of band three of R v AM.
[54] You do not have relevant previous convictions that require an uplift.
17 R v AM, above n 1, at [109].
18 R v Gordon [2009] NZCA 145.
Adjusting the Starting Point
[55] I turn now to consider whether there are any mitigating factors which would reduce the starting point. The pre-sentence report indicates that you show no remorse for your offending. Furthermore, you did not plead guilty to your offending but rather were convicted of these offences at trial. Therefore you are not entitled to any guilty plea discount as per R v Hessell.19 This means that your end sentence is one of 15 years imprisonment.
Minimum Period of Imprisonment: Sentencing Act 2002, s 86
[56] I do not consider that it would be appropriate for you to come up for parole after serving only one third of your sentence. I wish to denounce your conduct and the harm you have caused to the victims and to your family. The Court of Appeal in R v Brown said an offence will be sufficiently serious to impose a minimum term of imprisonment where there are:20
matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.
[57] This is a case involving multiple vulnerable victims and certainly justifies a minimum period of imprisonment. Accordingly, I impose a minimum term of imprisonment of seven and a half years.
Result
[58] Mr Petera, would you please stand now.
[59] On the count of sexual violation by rape you are sentenced to 15 years imprisonment.
[60] On the representative count of sexual violation by unlawful sexual connection you are sentenced to 11 years imprisonment.
19 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
20 R v Brown [2002] 3 NZLR 670 (CA) at [27].
[61] On the count of attempted sexual violation by rape you are sentenced to seven years imprisonment.
[62] On the representative count of indecent assault of a girl under the age of 12 you are sentenced to seven years imprisonment.
[63] On the count of indecent assault you are sentenced to four years imprisonment.
[64] These terms will be served concurrently; meaning the total sentence to be served is one of 15 years imprisonment. You will not become eligible for parole until you have served seven and a half years of your sentence.
[65] I must also give you a warning under s 86B of the Sentencing Act. Given your conviction for sexual violation you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the ‘serious violent offences’.
(i)If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(ii)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[66] Please stand down.
……………………………….
Woolford J
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