R v Rapana
[2021] NZHC 3407
•13 December 2021
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT, PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE
CRI-2019-019-3079
[2021] NZHC 3407
THE QUEEN v
ROMANA RAPANA
Hearing: 13 December 2021 Appearances:
R Mann for the Crown
G Walsh for the defendant
Judgment:
13 December 2021
SENTENCING JUDGMENT OF HARLAND J
Counsel/Solicitors:
Hamilton Legal, Crown Solicitor at Hamilton G Walsh, Hamilton
R v RAPANA [2021] NZHC 3407 [13 December 2021]
Introduction
[1] Mr Rapana you have pleaded guilty to one charge of sexual violation by unlawful sexual connection1 and one charge of kidnapping.2 The lead charge is the charge of sexual violation by unlawful sexual connection, the maximum penalty for that is a term of imprisonment of 20 years. The charge of kidnapping attracts a maximum penalty of 14 years’ imprisonment.
[2] You are a young man of 27 years of age, but because of what occurred, the inevitable outcome is that a period of imprisonment must be imposed. The main issue that I need to decide is whether I should impose a determinate sentence of imprisonment, you have heard that being referred to as a finite term of imprisonment or the indeterminate sentence of preventive detention.
[3] There is a process I must follow in sentencing you. I first address your offending before dealing with your personal circumstances and the sentencing options available to me.
The offending
[4] At about 2:30 am on Wednesday, 15 May 2019, the victim, who was aged 17 at the time and a stranger to you, was walking south on Cliff Street, Raglan, towards the intersection with Bow Street. At the same time, you were walking west on Bow Street towards the intersection with Cliff Street. When you rounded the corner onto Cliff Street you encountered the victim. You greeted her and she reciprocated as you both walked past each other.
[5] Once past her, you turned around, approached her and grabbed her from behind. You told her that you found her attractive and that she should come with you. She declined, pulling away from you and telling you to leave her alone.
[6] You then grabbed her again and stated, “come with me or I will fucking stab you in the neck”. Fearing for her safety, she accompanied you as you led her across
1 Sections 128(1)(b) and 128B Crimes Act 1961.
2 Section 209(b) Crimes Act 1961.
Cliff Street to a walking path leading to the Raglan Harbour foot bridge. You told her you had done this type of thing before and that the police knew you. You said that you had just got out of prison.
[7] You led her over the foot bridge to a small fast food café. There you made her sit on the ground. You began to touch her and tell her how attractive she was. You touched between her legs and her bottom on the outside of her clothing. She pleaded with you to let her go, however, you refused and stated that if she did not do what you wanted, you would stab her.
[8] You began to kiss her around the face before removing you erect penis and telling her to perform oral sex on you. Fearing for her safety, she did this for several minutes. You then got her to stand back up and led her over to the male entrance of a changing room block approximately 50 metres away.
[9] By the entrance to the male changing rooms, you again produced your erect penis and directed her to perform oral sex on you. She did this for a further few minutes until you ejaculated into her mouth. You then led her across the Raglan Harbour foot bridge and back along a walking path behind the Raglan Police Station.
[10] As you both approached the Police Station, you began to hang back from her. Seizing her opportunity to escape, she ran down past the Police Station to her vehicle nearby. You left the area and were not seen again by her.
[11] When you were spoken to by the police, you said that you were in Raglan drinking alcohol and could not remember anything. I note that you now say you are very sorry for what you did. Some of the report writers acknowledged that you said you were sorry; some considered you were sorry because you are appearing before the Court. I hear, however, what you have said through Mr Walsh today that you want to and you do publicly apologise to the victim for your behaviour.
Victim impact statement
[12] Your offending has had a significant impact on this young woman. Her ordeal lasted about an hour. She describes herself as being young and naïve at that time. As
a result of what happened to her, she has no doubt had to grow up very quickly. You of all people should know what it is like to have part of your youth taken away. She talks about feeling afraid, very understandably. And she talks about begging you to just let her go home but being frightened because you were bigger than her. And after you threatened her, she felt she had no choice but to do what you said. I accept that she had no choice at that point because of your behaviour.
[13] There is a long-term effect on her because of this. But it does not only impact her, it also impacts her family and her friends because this is a place where she thought she was safe.
[14] I am very heartened to read that this young woman has bravely moved on with her life and has decided that she is not going to let what you did to her define who she is as a person. I acknowledge her bravery and courage in presenting this material to me and being here today to listen at your sentencing.
Sentencing options.
[15] I need to determine whether to impose a finite sentence of imprisonment to reflect your offending. This means a sentence of imprisonment of a prescribed number of years; with perhaps a minimum term you must serve before being eligible to apply for parole. This is the option that your lawyer asks me to adopt, although he asks me on your behalf not to impose a minimum term of imprisonment. The alternative, and the sentence the Crown urges on me, is the indeterminate sentence of preventative detention. This is a sentence that has no end date. It would be for the prison authorities to determine when you should be released. They would only do that if they were satisfied that you no longer pose a threat to female members of the community.
Finite sentence
[16] In order to determine this issue, I first need to determine what the finite sentence would be if I were to impose one.
[17] Your offending has a number of aggravating features. The first is the threats of violence you made to the victim and your detention of her. Under threat of serious
violence, you made her go with you to a secluded location to fulfil your sexual desires. Your threats had the effect of securing her compliance as she feared for her safety. As well, you violated her on two separate occasions at the two locations I have referred to. On the second occasion you made her perform oral sex on you, your violation continued to the point of ejaculation.
[18] The second aggravating feature is the impact on the victim. I have already referred to that and do not repeat it again apart from to say that it is profound.
[19] The third aggravating factor is the victim’s vulnerability. She was only 17 years of age, a young female alone at night, walking in a public area where she thought she was and should have felt safe.
[20] I am not persuaded that your offending displays planning or premeditation to a significant degree, however, I agree that these aspects were present to a limited extent. This is because you are a local and you took the victim to a place which you knew was secluded so that your offending would be able to occur without interruption. Other than this, I accept that your offending was opportunistic. Whether or not it was a spur of the moment action as your lawyer submits, I am less sure. But regardless, the fact that it was opportunistic is, in my view, very concerning.
[21] The guideline decision of the Court of Appeal for offending of this type is a case called R v AM.3 In that case the Court of Appeal identified bands of offending for which it suggested starting points for terms of imprisonment. Both counsel agree that your offending falls within Band 2 of the “rape band”. Offending within this band, attracts a starting point of between seven and 13 years’ imprisonment.
[22] The Crown submits that 10 years is the appropriate starting point whereas your lawyer submits it should be eight and a half years’ imprisonment. Both suggested starting points of place your offending in the middle of Band 2 which is where I agree it falls. In my view a starting point of 10 years’ imprisonment is justified, as your case bears similarities to R v Takiari,4 a case referred to in R v AM.5 This starting point
3 R v AM [2010] 2 NZLR 750.
4 R v Takiari [2007] NZCA 273.
5 ` R v AM, above n 3 at [98] and [102].
reflects that there were two occasions where you threatened violence against your victim to secure her compliance, and it reflects the two separate violations I have referred to.
[23] Next, I address whether an uplift to this term of imprisonment would be required because of your previous conviction particularly for sexual offending. On 10 June 2011, you committed an earlier incident of sexual offending against an unknown woman in Raglan, bearing significant similarities to the current offending.6 The commonality between the two events is confirmed by the admission of evidence of the former incident as propensity evidence in this case, that determination being upheld on appeal.7
[24] At the time of the earlier offending, you were staying in Raglan at your parents’ address having been released from prison on 2 November 2010. On 10 June 2011, you went into the house of an unknown victim and into her bedroom. After being unsuccessful in removing her pyjama pants, you digitally penetrated her repeatedly. This offending came to light when your fingerprints from within the home were identified. You told the police that it was a mistake as you had thought your ex- girlfriend lived there. At the age of 19, for that offending, you were sentenced to 6 years’ imprisonment.
[25] The Crown say an uplift of 12 months’ imprisonment is required to reflect your previous conviction for sexual offending. Your lawyer submits that none is required. I consider an uplift is required. I would adopt an uplift of 6 months.
[26] In terms of mitigating features, there is a s 27 report. I acknowledge that it would have been very difficult for you to speak of the things that you spoke to the report writer. Your upbringing has been difficult and traumatic. It is an upbringing where physical, emotional and sexual abuse, alcohol and drugs were too much of a reality. These things were not your fault. They were the fault of others who were supposed to be protecting you and looking after you. As a result of your trauma, you joined a gang when you were only 12 years of age. Sadly, you were also excluded
6 R v Rapana [2013] NZCA 62.
7 R v Rapana [2020] NZCA 335.
from school when you were only 13 years of age. You are disconnected from your cultural roots. Again, not a matter that is your fault, but the fault of others who should have helped you to know who you are and where you are from. I accept that a causal link has been established between your background and your offending which justifies a deduction. In my view 15 per cent is appropriate.
[27] Then there is your guilty plea at the outset of your trial. I agree that 10 per cent is appropriate.
[28] Having regard to these matters, an end sentence of seven years and eight months’ imprisonment would be the outcome if a finite sentence is to be imposed.
[29] In so far as a minimum term of imprisonment is concerned, as the Crown noted because the first strike warning was in force at the time these offences were committed, you would be required to serve the full sentence imposed upon you without parole.8 Because of this, a minimum period of imprisonment would not be required. However, as you have heard me debate with counsel and despite this, I am nonetheless required to identify a minimum period which would have been imposed, leaving the three strikes regime to one side and the reasons for it.9
[30] The Crown submits that a minimum period of two thirds of any finite term imposed would be required in your case to hold you accountable, denounce your conduct, deter you and others from engaging in such conduct and primarily to protect the community. Mr Walsh did not nominate a minimum period of imprisonment but accepted that one should apply.
[31] I agree with the Crown that a minimum period of imprisonment of two thirds would be required to address the matters outlined in s 86(2). That means you would serve a period of five years and two months before being eligible for parole; that is, if I were to impose a finite sentence and were you not to be subject to the three strikes regime.
8 Section 86C(4).
9 Section 86C(6).
Preventative detention
[32] As I have said, the real issue in your case is whether I should impose the indeterminate sentence of preventive detention. That sentence may be imposed where the Court is satisfied a defendant is likely to commit another qualifying or violent offence upon release after serving any sentence the Court might impose.
[33] In deciding whether to impose a sentence of preventive detention, the Court is required to take into account five factors set out in s 87(4) of the Sentencing Act 2002 (the Act). Following that assessment, the Court must then stand back and determine the manner in which it should exercise its discretion, either in favour of a finite sentence of imprisonment or the sentence of preventive detention. The underlying concern that the Court is required to address is whether a defendant is likely to remain an ongoing risk to the safety of the community that can only be met by the imposition of a sentence of preventive detention.
[34] That sentence is, however, not a sentence of last resort.10 It is not a sentence that can only be imposed after other sentencing options have been tried without success. This is important in your case because you did not receive any intervention to specifically address your prior sexual offending.
[35]I am required to take into account the following factors:
(a)Any pattern of serious offending disclosed by your history;
(b)The seriousness of the harm to the community caused by your offending;
(c)Information indicating a tendency to commit serious offences in the future;
(d)The absence of or failure of efforts by you to address the cause or causes of your offending; and
10 R v C [2003] 1 NZLR 30.
(e)The principle that a lengthy finite sentence is preferable if this provides adequate protection for the community.
(a) Any pattern of serious offending disclosed by the offender’s history
[36] You are before the Court in relation to a serious incident of sexual violation on a young woman unknown to you, that you came across by chance at night in Raglan. I have referred to the circumstances of your previous offending, some seven months after you had been released from prison, which was also against a young woman you did not know and involved you breaking into her home and violating her while she was in her bed.
[37] I conclude that there is a serious pattern of offending disclosed by your history when viewed in conjunction with this offending. This was confirmed on appeal by the admission of your prior conviction and the circumstances relating to it as propensity evidence in this case.
(b) The seriousness of the harm to the community caused by the offender
[38] The harm caused to your victims is incalculable. I say “victims” because it includes the victim’s family and friends, and I also take into account the previous victim as well. Both were unknown to you and both were in situations where they were entitled to feel safe from the kind of harm you perpetrated on them.
[39] The harm caused by offending such as this, however, spreads beyond the immediate victims. As well as the victims’ families, it extends to the community in general. All people, including women, are entitled to feel safe not only in their own homes, but also if they are walking alone at night. And they are entitled to do so without the fear of being threatened with violence or sexually offended against by strangers.
[40]This factor has also been met in your case.
(c) Information indicating a tendency to commit serious offences in the future
[41] This is where I look to the reports that have been prepared. There is the pre- sentence report which you have heard addressed today. The report writer considers that you are at high risk of reoffending and said that you display no remorse towards victim. I have already said I accept you are displaying remorse here today.
[42] In considering this issue, I have also been provided with the two reports; a report from Mr Bauer, a psychologist, and a report from Dr Jordaan, a psychiatrist. Both reports were ordered by the Court to assist it in determining whether it should impose a sentence of preventive detention.
[43] The report writers have studied material relevant to your case and they have interviewed you at some length. Both note that you recognise you have serious issues to address and they record that you are motivated to engage in treatment and learn to change. It is to your credit that you want help. Your ability to comply and maintain change once released into the community however is questioned.
Mr Bauer
[44] Mr Bauer is a registered clinical psychologist. He used tools known as the Static-99 and Violence Risk Scale – Sexual Offence Version (VRS-SO) to assess the risk of you sexually offending in the future.
[45] Although noting that you had completed a high intensity Drug Treatment Programme, followed by a short engagement in individual psychological treatment during your term of imprisonment for previous sexual offending, he observed that this did not explicitly address your sexual offending because you denied recalling it.
[46] Accepting that having undertaken programmes and treatment, and that this was potentially protective, Mr Bauer considers the treatment gains were not enough to prevent you from returning to substance abuse when you were released and,
subsequently, sexually reoffending. The support from your whānau, sadly was not
effective in helping you to desist from sexual reoffending either. As Mr Bauer said:
At the present time, Mr Rapana’s stated motivation to seek professional help is considered a starting point from which he may develop some protective factors in the future.
[47] Mr Bauer assessed your risk of sexual reoffending as, well above average. He noted that this risk category indicates severe, chronic problems in several risk relevant areas and that you would require extensive treatment and/or rehabilitation to reduce your risk to an average level.
[48]He noted:
If Mr Rapana were to re-offend in a sexual manner, it is likely to be preceded by substance abuse and an upwelling of negative emotions associated with his adverse past. Possible triggers include an argument/conflict with a significant other, being in the Raglan area, and seeing a potentially vulnerable adult female while in the above-described state (most likely at night). Power and control motivation is likely to be included. However, insufficient information is known at this time to confidently describe the most likely pathway and triggers to his sexual offending. The form of potential sexual offending by Mr Rapana is likely to include some force, threat or actual violence, and may range from compelling oral sex to be performed on him to digital penetration. Attempted or actual penile intercourse (rape) cannot be ruled out.
[49]He concluded:
Mr Rapana has committed two serious sexual offences against a backdrop of predominantly dishonesty offending and violence (the latter largely undetected). His second sexual offence (in 2019) included an escalation in violence. It followed a significant custodial sanction during which Mr Rapana completed intensive treatment of some associated risk factors but did not explicitly address his sexual offending. Reported treatment gains fell away when Mr Rapana was subsequently released to the community in 2018. He is assessed as being at Level IVb (Well Above Average) risk of sexually reoffending and in need of further extensive and intensive treatment and rehabilitation (available in prison). Mr Rapana’s risk of sexual reoffending is estimated as likely to endure in the long term. This estimate is based on the following: Mr Rapana's high STATIC-99R score indicates that many years of desistance in the community will be required for his risk to reduce to an Average level, some of his risk factors appear to be deeply embedded, he has not completed intensive sexual offence-focused treatment, he relapsed to an unstable lifestyle (associated with his sexual offending) which included substance abuse when last released, despite Drug and Alcohol Abuse Treatment in prison and community support on release in 2018, he sexually reoffended some 16 months following his last release.
and
Significant steps for Mr Rapana to address his relevant risk factors are likely to include counselling in relation to his own childhood sexual abuse, cultural programmes to develop self-esteem and a positive identity, a Maori focussed intensive Drug Treatment Programme, psychological treatment to address his anger issues, and a Special Treatment Unit-Sexual Offence Programme. These interventions would need to be followed by structured support and supervision for a number of years to assist Mr Rapana reintegrate into the community, apply his treatment gains, and manage his sexual offending risk factors. Previously and now Mr Rapana has presented as recognising he has serious issues to address, and as motivated to engage in treatment and learn to change. Mr Rapana’s previous response to supervision in the community has been unreliable. Consequently, he would need to generalise his noted capacity for compliance and productive use of time in prison and apply it to supervision in the community as well. This would likely require specific preparation as it would require a departure from his lifetime pattern of challenging behaviour and disregarding boundaries in a community setting.
Dr Jordaan
[50] Dr Jordaan, a consultant forensic psychiatrist, does not consider you have a severe or enduring mental illness. In her opinion, you display features of depression and anxiety which do not meet the criteria for a definitive diagnosis. She also considers, however, you have features of post-traumatic stress disorder (PTSD) related to your childhood sexual abuse and that this should be further explored within a therapeutic setting. She notes you have a diagnosis of poly-substance abuse, which includes alcohol abuse (severe), methamphetamine and cannabis and, additionally, you have anti-social personality disorder traits.
[51] Dr Jordaan observed that the task of predicting your likelihood of committing a qualifying sexual offence is fraught with difficulty. Having acknowledged that the factors associated with the risk of reoffending cannot predict an individual’s risk in the distant future with any degree of certainty, she went on to summarise those actual, real and dynamic factors which apply to you.
[52] The actual risk factors include, childhood adversity and childhood sexual abuse, substance abuse problems, past suicidal ideation and attempts, anti-social personality traits, previous sexual offending, previous non-sexual offending (multiple charges, including two violent offences involving an assault), employment instability and relationship instability, noting, however, that you have maintained contact with
significant females in your life (including your stepmother, ex-partner and your daughter). I acknowledge here that you have rekindled a relationship with them while you have been imprisoned and that that is a positive, motivating factor for you. This is a good thing.
[53] Dr Jordaan also noted that some factors present are not associated with sexual recidivism. She observed that you do not have a pattern of chronic or multiple previous sexual offences, there is no known early onset of sexual offending, no diverse sexual offending, no offences involving children and although your sexual offending included digital penetration, oral sex and coercion, you did not inflict further physical assault/damage on your victims.
[54] Dr Jordaan noted that the risk of committing a sexual offence is often associated with certain dynamic factors. In relation to you she noted:
·Mr Rapana does display some distorted thinking such as denial, rationalisation and displacing blame (e.g. claiming no memory for events/ possible case of mistaken identity/ blaming substance use for his behaviour/ blaming correctional services for release without support or gradual reintegration). He also displays a lack of remorse.
·His offences however appear opportunistic (without stalking or grooming behaviour).
·He does not have an underlying mental illness.
·Mr Rapana does not have a negative view of further intervention or supervision, stating that he wants to engage in substance rehabilitation again and requires more support and supervision once he is in the community. However, he has engaged in a six month substance rehabilitation programme during his previous incarceration, but relapsed within a month of leaving prison, indicating that he was not able to apply the theory of the intervention upon release.
·He has not engaged in a sex offender treatment programme in the past.
[55] Dr Jordaan’s recommendations include you re-engaging in a substance rehabilitation programme to manage your severe substance abuse, given that it plays a significant role in your offending behaviour. She also recommends therapeutic treatment regarding your childhood sexual abuse and a sex offender treatment programme. She also considered you would benefit from future enhanced supervision and gradual reintegration into the community once your sentence has been served.
[56] Although those reports are helpful, I am left to make my own assessment of the risk that you pose in the future. I deal with this issue when considering whether to exercise my discretion in favour of a finite sentence or a sentence of preventive detention.
(d) The absence or failure of efforts by the offender to address the cause or causes of the offending
[57] Although you have experienced previous rehabilitative interventions concerning your substance abuse, you do not appear to have been able to translate any benefits you learned from those programmes to your behaviour in the community once released. This is important because of the link between your substance abuse and your sexual offending.
[58] You have not, however, had the chance to participate in any interventions to target your sexual offending. However, this of itself is not determinative. While you are willing to engage in a programme, the question for me is whether, if all things are considered, this will reduce the risk of you reoffending.
(e) The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[59] There is no need to address this factor any further. It represents Parliament’s view that where the community can be adequately protected through the imposition of a finite sentence, then it is preferable that a finite sentence be imposed.
Conclusion
[60] I must now reach my own conclusion as to the risk that you pose of committing another qualifying sexual offence on your release from prison. This is not at all straightforward because although you express a willingness to participate in further programmes to address your offending, so far, the treatment you have received has not resulted in a change of behaviour. This suggests that the causes of your offending will be difficult to address and deep-seated. They are linked to your dysfunctional upbringing and to your substance abuse. I am concerned that despite learning new ways to address your substance abuse issues, upon release, they reappeared very
quickly and contributed to this offending. Although it is important for you to get help while you are in prison, it is unlikely that when released into the community, the level of support you will receive either from your family or other services will be enough to address what Mr Bauer describes as “a lifetime pattern of challenging behaviour and disregarding boundaries in a community setting”. All of this must be looked at against the assessment that the risk of sexual reoffending for you is well above average.
[61] Your lawyer submits that an extended supervision order (ESO) would provide adequate protection for the public11 and is appropriate in your case because it is finely balanced case.12 He submits that your risk of reoffending would be better addressed after you have completed further programmes and at the time when you are to be released, rather than pre-sentence.
[62] The Crown, relying on R v Haerewa, does not consider that your case is finely balanced and therefore does not consider an ESO will provide adequate protection for the community.13 In Mr Haerewa’s case, his inability to comply with community- based orders meant that preventative detention was viewed by the court as the only option that would protect the community from his violence.
[63] I do not agree with your lawyer that the reports clearly show that your risk of reoffending can be addressed and reduced with specific rehabilitation and treatment in a custodial setting with a lengthy but finite sentence. Neither do I agree that to impose the indeterminate sentence of preventative detention in your case is finely balanced.
[64] Accepting that you are motivated to change, there is no reason with either sentencing outcome that rehabilitative measures cannot be employed by you while you are incarcerated.
[65] This leads me to the final issue, which is whether I should exercise my discretion in favour of a finite sentence. The protection of the community is paramount. Your offending being against two young women who were strangers to
11 R v Mist [2005] 2 NZLR 791.
12 R v Bell [2017] NZCA 90.
13 R v Haerewa [2020] NZCA 198 at [69].
you and in both cases, your substance abuse has contributed considerably to them occurring. You have not been able to put into practice what you learned in prison to assist you with your substance abuse. Although I acknowledge your willingness to undergo more treatment for substance abuse and treatment for your other issues including sexual offending, I have a significant concern that because of your extremely dysfunctional background, your ability to implement change will be limited.
[66] The problem with a finite sentence given the factors at play for you as described in the reports, is that whatever term the Court imposes, you will be released from prison at the conclusion of that sentence. It is true that the Court has the power to impose an extended supervision order and that this potentially could be imposed in your case. But the harm you have caused and the random nature of your offending means that this Court cannot take the chance or risk of imposing a sentence that will not ensure the safety of the community on your release.
[67] For these reasons, I am satisfied that the criteria outlined in s 87(2) of the Act have been met and that the sentence of preventative detention is appropriate because it means you will not be released from prison until the prison and psychological authorities are sure you no longer pose a safety risk to the community. I acknowledge again, however, and recognise that you are motivated to engage in therapeutic intervention. This is important and I urge the authorities to ensure that you receive the treatment recommended by those report writers.
[68] The appropriate minimum period to attach to your sentence of preventative detention in accordance with the submissions that have been made to me by counsel, is the finite sentence that I would have imposed had I imposed a finite sentence, and that is a minimum period of seven years and eight months. In my view, that recognises the factors that the Act requires me to recognise.
Sentence
[69] Mr Rapana, you will be sentenced on all charges to a term of preventative detention. The minimum period of imprisonment will be seven years and eight months.
Harland J