R v Rihari
[2021] NZHC 3334
•7 December 2021
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-004-3319
[2021] NZHC 3334
THE QUEEN v
BILL RIHARI
Date of hearing: 7 December 2021 Appearances:
HDL Steele and S M Murphy for the Crown A S Bloem and J M Kim for Mr Rihari
Date of sentence:
7 December 2021
SENTENCING NOTES OF JAGOSE J
Counsel/Solicitors:
Bloem & Associates, Auckland
Meredith Connell, Crown Solicitor, Auckland
R v RIHARI [2021] NZHC 3334 [7 December 2021]
[1] Mr Rihari, as you know, on 17 May this year, a jury found you guilty of 26 sexual offending charges. They were:
(a)two charges of doing an indecent act on a young person;1
(b)two charges of sexual violation by unlawful sexual connection;2
(c)eight charges of rape;3
(d)seven charges of indecency with a girl under 12;4 and
(e)seven charges of indecency with a girl between 12 and 16.5
[2] I now am to sentence you for those convictions. In sentencing you, I must accept as proven all facts essential to your established guilt.6 Because I was the trial judge, for sentencing, I also am entitled to make factual findings based on the evidence at trial, if consistent with the jury’s verdicts, whether or not adverse to your interests.
I am not bound to accept a version of facts most favourable to you.7
[3] I have read and listened to all that counsel have had to say, both for you and for the Crown. As you have just heard, the Crown recommends a starting point of at least 16 years for your imprisonment, and with a minimum period of imprisonment (“MPI”) of 50 per cent. Your counsel recommend a starting point of 12–13 years’ imprisonment, with no MPI. They additionally claim discounts in a range from 30–35 per cent, or an end sentence of eight to nine years’ imprisonment. The lawyers’ written submissions are detailed and lengthy. I have given them careful consideration. But I do not recite them, because sentencing is an intense exercise of my own judgement. I am not bound by the lawyers’ views; I have to come to my own decision. I must satisfy myself of the appropriate sentence for the gravity — the seriousness — of your offending, including your culpability — your responsibility — for it.
1 Crimes Act 1961, s 134(3). Maximum penalty: seven years’ imprisonment.
2 Section 128(1)(b). Maximum penalty: 20 years’ imprisonment.
3 Former s 128. Maximum penalty: 14 years’ imprisonment.
4 Repealed s 133(1). Maximum penalty: 10 years’ imprisonment.
5 Former s 134(2). Maximum penalty: seven years’ imprisonment.
6 Sentencing Act 2002, s 24(1)(b).
7 Section 24(1)(a); and Edwardson v R [2017] NZCA 618 at [105]–[107], citing R v Connelly [2008] NZCA 550 at [14] and B (CA58/2016) v R [2016] NZCA 432 at [76].
Background
[4] I need first to cover off the background to your offending, to let people know the conduct for which I am sentencing you.
[5] You offended against five victims. Their names, addresses and occupations automatically are suppressed from publication, for their protection because of your specified sexual offending.8 I am not asked to permit their publication. When my comments now are reduced to writing, the victims will be anonymised. But I refer to them here in open Court by name, to acknowledge their individual dignity and presence and to ensure the clarity of my remarks. Meaning no disrespect, because some of the victims share the same surname, I also refer to them by their given names.
—convictions on charges relating to AB
[6] I start with your offending against AB. You committed four offences against her: two indecent acts on a young person (one specific, one representative) and two sexual violations by unlawful sexual connection (again, one specific, one representative).
[7] For a period from mid-2006 until late-2008, when AB was 14 and 15 years old, she lived in your family’s home in West Auckland. On at least two occasions (AB says more frequently), you entered her room where she was in bed and laid on top of her to rub your penis against her vagina through her underwear, simulating sexual intercourse. For this offending, the jury found you guilty of the indecent acts.
[8] During that time, also on at least two occasions (AB says four times during a two-month period), you rubbed her clitoris with your fingers. You did not have AB’s consent to do so, or believed you had her consent, or had any reasonable ground on which so to believe. For this offending, the jury found you guilty of the sexual violations.
[9] AB said your offending caused her to freeze with fear. You were 55–57 years old at the time of your offending against AB.
8 Criminal Procedure Act 2011, s 203.
—conviction on charge relating to CD
[10] I turn to your offending against CD, on which you were convicted of a single charge of rape.
[11] At some point in the six years before April 1980, with the promise of a chocolate bar, you had CD follow you to an abandoned house near her home in Northland. There, you had her lie down on a mattress on the floor. You instructed her to remove her pants. When she refused, you removed them from her, before removing your own clothing.
[12] You forced CD’s legs apart and inserted your penis into her vagina. After some time, CD managed to push you off her. You threatened to hurt CD’s mother if she told anyone what had happened. You told her to get dressed, and left the house. CD did not consent to the intercourse. Neither did you genuinely believe that she had consented.
[13]You were 23–29 years old at the time of your offending against CD.
—convictions on charges relating to EF
[14] Next, your offending against EF. You were convicted of ten charges of sexual offending against EF: three rapes (two specific, one representative), five indecencies with a girl under 12 (three specific, two representative) and two indecencies with a girl between 12 and 16 (both representative).
[15] On some date between September 1972 and September 1979, you were tasked with watching over EF at a Northland address. EF then was a young person. When EF returned from bathing outside, she found you sitting on a chair with no pants on. You told her to sit on your lap and “ride the horsey”. She climbed onto your lap and you inserted your penis into her vagina. EF did not consent to the intercourse, which ended only when another young person in your care entered the room and pulled EF off your lap. For this offending, the jury found you guilty on a charge of rape.
[16] At some time between September 1974 and September 1979, you told EF to go with you in a rowboat to pull in a net. Anticipating what was to come, EF drank
salt water from the sea to make herself sick, but her attempt failed. Once you were out of sight from the shore, you told EF to “throw the anchor, you know what to do”. You then forced EF to take your penis into her mouth, before bending her over the boat’s seat. You inserted your penis into her vagina. You ejaculated into EF’s mouth. When she attempted to clean her mouth with salt water, you struck her with an oar and told her to swallow your ejaculate. You threatened to kill EF’s mother and “love” (that is, rape) her sisters if she reported the incident. For this offending, the jury found you guilty of rape and indecency with a girl under 12.
[17] On another occasion in that same time period, you took EF to a bay to collect figs and oysters. You laid a net cover on the ground near a fig tree. You said again to EF, “you know what to do”. EF removed her underwear and laid on her back on the net cover. You told her she was in the wrong position, telling her to turn onto her hands and knees. You penetrated her anus with your penis. After some time, you rolled EF onto her back, put your penis into her mouth and ejaculated. For this offending, the jury found you guilty of two indecencies with a girl under 12.
[18] The jury also found you had sexual intercourse with EF without her consent on at least one occasion between May 1969 and September 1981. Additionally, it found, between May 1969 and September 1979, you:
(a)forced EF to take your penis in her mouth on at least one occasion other than the time on the boat; and
(b)penetrated EF’s anus with your penis on at least one occasion other than the time near the fig tree.
Finally, the jury found, between September 1979 and September 1981, you:
(c)forced EF to put your penis in her mouth on at least one occasion; and
(d)penetrated EF’s anus with your penis on at least one occasion.
For all that offending, the jury found you guilty of a representative charge of rape, two representative charges of indecency with a girl under 12 and two representative charges of indecency with a girl between 12 and 16.
[19] EF’s evidence was the oral indecencies occurred over 50 times and each of the other types of offences happened “lots of times”. You were 18–30 years old at the time of your offending against EF.
—convictions on charges relating to GH
[20] Now I turn to your offending against GH, your nine convictions for offences against her being three rapes (two specific, one representative), two indecencies with a girl under 12, and four indecencies with a girl between 12 and 16 (two specific, two representative).9
[21] At some time between October 1973 and October 1975, you called GH, then a young person, into an unoccupied Northland house. There, you told her to sit down on a bed. You removed her pants and used your hands to open her legs. You spat on your fingers and inserted them into her vagina. You then rolled GH onto her front and penetrated her anus with your penis. You later rolled her back and inserted your penis into her vagina. GH suffered bruising and significant pain from this assault. She described seeing “blood everywhere”. You told her not to tell anyone what had happened. For this offending, the jury found you guilty on a charge of rape and two charges of indecency with a girl under 12.
[22] On another occasion between October 1975 and October 1979, you joined GH while she was collecting chicken eggs in an area of flax bush. In the flax bush, you put your fingers and penis into her vagina, and your penis into her anus. For this offending, the jury found you guilty on a charge of rape and two charges of indecency with a girl between 12 and 16.
[23] The jury also found — on at least one occasion each in the same period, other than those in the abandoned house and in the flax bush — you:
(a)introduced your fingers into GH’s genitalia;
(b)penetrated GH’s anus with your penis; and
9 I inadvertently said “one representative” in my sentencing remarks, but ‘two representative’ is correct.
(c)raped GH.
For this offending, the jury found you guilty on a representative charge of rape and two representative charges of indecency with a girl between 12 and 16.
[24] At trial, GH said each of these different types of offences occurred at least six times. You were 22–28 years old at the time of your offending against GH.
—convictions on charges relating to IJ
[25] Last, I summarise your offending against IJ, being your convictions each for rape and indecency with a girl between 12 and 16.
[26] At some time in the two years from January 1967, you were collecting firewood with IJ and some other children. The other children ran up a hill, you encouraging them to go ahead, leaving you alone with IJ. You told IJ to lie down so you could strap some wood to her back, being how the firewood was carried. You then tore off IJ’s pants. When she resisted, you punched her in the stomach. You forced yourself on IJ, telling her you wanted “onioni” (sex). You put your penis into her vagina and, after a time, ejaculated on her. You threatened IJ would “get a hiding” if she told anyone what had happened. For this offending, the jury found you guilty of rape.
[27] At some time between January 1972 and January 1974, you forced IJ to the ground in some long grass. You tried again to penetrate her. She fought with you and fled. For this offending, the jury found you guilty of indecency with a girl between 12 and 16.
[28]You were 15–22 years old at the time of your offending against IJ.
Victim impact statements
[29] I have been provided with written statements from each AB, CD, EF and IJ. You have heard them read, or have read, some of their content, explaining the effects of your offending on them. The women and their statements are, respectively, devastated and devastating.
[30] The women speak of your abuse of your leadership position within their whanau, to harm them: obviously, physically but — more fundamentally — psychologically and spiritually, with lasting impact on themselves and on their relationships with their own families and their extended whanau, including you and your family. They speak of their loss of health, independence and trust, all at the hands of someone on whom the whanau relied to help foster those qualities in them. Some forgive you; some hope you learn from your convictions; some would see you exiled.
[31] AB was diminished in her withheld pain and suffering by her family’s obvious love for you. She says your offending severely affected her relationships with her own children, and with her brothers and other male relatives. CD rejects the “pain, darkness, hurt, heartache, shame, doubt, ugliness, loss and anxiousness” you caused her. EF explains how your abuse of her has played as a horror movie in her head for the past half-century. She says she was broken by you — physically, mentally, financially and spiritually — to the point of rejection of her turangawaewae if shared with you. IJ emphasises your appointed position in the whanau and kainga, and her loss of identity and independence from your abuse of it, and at a place she views her refuge. She says you are not welcome to return, because it can only be a place of safety without you.
[32] These statements help me understand your victims’ views of your offending. And I encourage you to reflect on them with an open mind, to inform you of their perspectives of the impact of your offending.
Personal circumstances
—PAC report
[33] For your sentencing, I have a pre-sentence report prepared by the Department of Corrections. It records you maintain your innocence, and your belief the complaints against you were linked with a dispute over family-owned land. The report-writer assesses your risk of re-offending as high, given the extent of your offending, and presenting a very high risk of harm. Given the gravity of your offending and the length of the period over which you offended, the writer recommends your imprisonment.
[34] Your first wife passed away 20 years ago. You have been with your current partner for many years. You have six children, now aged between 16 and 40 years old. You say you were emotionally, physically and sexually abused as a child by two of your aunts, giving you a traumatic childhood in which you developed a fear of women, which has played out in your personal life since.
[35] You otherwise are said to lead a balanced lifestyle, not having any drug or alcohol dependencies. Given the nature of your offending, the report-writer identifies offending-related sexual arousal as a risk factor. The writer says you need to accept your offending and understand its nature before you can address your behaviour.
—s 27 cultural report
[36] You have asked me to hear from Tara Oakley on your cultural background, and the way in which it may have related to your offending.10 She identifies the following causative background factors as contributing to your offending:
(a)your cultural disconnection, deprivation and dysfunction through colonisation;
(b)in a culture of sexual promiscuity, incest and familial childhood molestation normalising sexual offending;
(c)with your own childhood sexual abuse as a predisposing factor to sexual offending; and
(d)your trauma as a predisposing factor to criminal offending.
Ms Oakley’s report is impressive, informative and influential. I recognise it also is based on your self-reporting.11 I am grateful for Ms Oakley’s diligence and expression.
[37] Ms Oakley emphasises the relative isolation of your earlier Northland life, not only geographically, but also without a father and from your mother until you were older, and from your Māori culture, with which you identify. You were experiencing
10 Sentencing Act 2002, s 27.
11 I have disregarded the report’s content where inconsistent with the evidence at trial.
a “changing of customs” from that deprived and secluded upbringing into the wider community, which you embraced but which brought “significant cultural dysfunction” within the kainga. The consequent conflict among family at the village was “destructive of their culture and connection to each other”. The sexual abuse you suffered in your childhood affected your later adult relationships. You report familial sexual abuse was not uncommon and tacitly accepted in your kainga. That is reinforced by the evidence at your trial, as illustrated by the deeply historical nature of many of the charges against you.
[38] I accept these background factors likely materially contributed to your offending. A less introverted environment would have allowed the influence of more acceptable cultural and social mores. And I recognise the environment’s apparent normalisation of familial childhood molestation and other sexual offending behaviours, and its likely function — together with your own childhood trauma — as predisposing factors to further such offending.
[39] Your own life, on your account, has been difficult, with a dysfunctional first marriage leaving you to hold the family together, and stressing you to the point of attempted suicide. You have three children with your present wife and several grandchildren. One of those grandchildren has schizophrenia, and you are concerned about the burden on your wife if having to take care of that grandchild on her own. For her part, your wife says you have always been a loving partner and a wonderful father. She says you are an integral member of the community and she has never seen anything suspicious or questionable in your behaviour. That also was supported by evidence at trial of your Auckland home’s provision of wider whanau support, notwithstanding its location also of AB’s abuse.
[40] Finally, Ms Oakley observes you have considerable support from your direct family. They are aware you may die in prison if you receive a long custodial sentence. Your wife has concerns about your wellbeing in custody after you recently suffered a stroke and, reportedly, heart attack. Your immediate family requests I consider a community-based rehabilitation plan for you, to repay your debt to society by way of community service. You are willing to do any rehabilitation I think suitable. Perhaps contradictorily then, but consistently with your continuing denial of wrong-doing,
Ms Oakley notes there has been no active effort to resolve issues relating to your offending.
Approach to sentencing
[41] I now explain how I will go about sentencing. The usual sentencing method involves two stages. First, I decide a starting point for the type of offending for which you are convicted. That involves identifying the aggravating and mitigating features of your offending.12 Then I take into account all aggravating and mitigating factors personal to you, all to be calculated as a percentage of the starting point.13 In general, this is referred to as the Taueki method. You will hear me refer to Taueki again.
[42] That is complicated here because all your offending — except in relation to AB — is historical, predating the guidance offered by and under the Sentencing Act 2002. Sentences for historical offending are to be fixed in the context of the maximum penalty prescribed at the time of the offending and in accordance with sentencing patterns at the relevant time.14 Sentencing then was less overtly analytic, the Court of Appeal explaining:15
[A] sentencer confronted with a case of historical sexual abuse should fix a starting point sentence based upon the sentencing levels of the relevant time and which recognises the aggravating features of the case. Then if appropriate allowance is to be made for mitigating features including of course the plea of guilty if there has been one. This, we consider, is a safer course since baseline tariff sentences (before aggravating features) did not exist until comparatively recently.
[43] It is commonstance “[s]entencing levels for sexual offending have changed dramatically from the 1960s and 1970s, and accurately applying a Taueki-style methodology [is] difficult”;16 “[t]o the extent that Judges referred at all to ‘starting points’ they were reflective of all aggravating features, whether related to the offending or the offender”.17 Still:18
12 R v Taueki [2005] 3 NZLR 372 (CA).
13 Moses v R [2020] NZCA 296, [2020] NZCA 296 at [46]–[47].
14 R v Accused (1998) 15 CRNZ 602 (CA) at 609; Hinton v R [2016] NZCA 269 at [91]; and R v Fahey CA184/00, 2 November 2000 at [5].
15 R v R CA244/04, 2 November 2004 at [19] and [22].
16 R v Milligan [2013] NZHC 118 at [11].
17 R v KJB (CA41/07) [2007] NZCA 292 at [29].
18 R v Accused, above n 14, at 609 per Goddard J.
A Judge passing sentence [now] cannot do so through the eyes of a Judge who might have sat on the case in the 1960s or 1970s, had it come to trial then. The starting point for any sentence must be fixed in the context of the maximum penalty available at the time and generally by reference to any discernible sentencing regime of that era. However, that does not involve attempting to reconstruct the sentencing mores of an earlier time. For example, if a particular type of offending was formerly regarded less seriously than now, present day attitudes must govern the sentencing approach.
Nonetheless, or perhaps thus, the Taueki method can and should be used in cases of historical offending, without breaching the constitutional prohibition on retrospective penalties.19
[44] There is a potential conflict in the Court of Appeal’s respective guidances to use “the sentencing levels of the relevant time”, but “present day attitudes must govern the sentencing approach”. If those are inconsistent (and they may not be, the latter only to offer a filter for selection of comparative sentences), then direction to ‘the sentencing levels of the relevant time’ is the more recent guidance, which I adopt.
[45] I emphasise, though, lapse of time between offending and conviction alone offers no basis for a lesser sentence.20 Sentencing practice generally has not been to allow significant sentencing discounts in cases of child sexual abuse by reason of that duration.21 Escaping detection for a period does not reduce the criminal sanction eventually imposed on an offender.22
[46] In the end, my sentence is to reflect this community’s repudiation of your crimes, the sentence being “determined not on impulse or emotion but in terms of justice and deliberation”.23 I must have regard for the statutory purposes and principles of sentencing.24 I must hold you accountable for your offending and for the harm you have caused.25 Your sentence should be sufficient to denounce your conduct,26 to deter
19 R v W (2006) 23 CRNZ 531 (CA); De Reeper v R [2012] NZCA 617 at [42].
20 R v Robinson CA304/95, 4 October 1995 at 5.
21 R v Accused [1993] 2 NZLR 286 (CA); R v Accused (1994) 11 CRNZ 622 (CA); and R v Elwin CA209/93, 10 August 1994. See also R v T CA282/97, 3 November 1997; and R v Brazendale CA170/87, 20 October 1987.
22 R v D CA221/95, 5 September 1995 at 5.
23 R v Puru [1984] 1 NZLR 248 (CA) at 249.
24 Sentencing Act, ss 7 and 8.25 Sections 7(1)(a) and 103(2)(a).
26 Sections 7(1)(e) and 103(2)(b).
you and others from committing such offences,27 and to protect the community.28 I must consider the gravity and seriousness of your offending, and take into account its effect on the victims.29 The sentence must take into account the desirability of consistency in sentencing,30 and anything in your circumstances as would make an otherwise appropriate sentence “disproportionately severe”31 in your case. I must impose the least restrictive outcome appropriate in the circumstances.32
[47] These purposes and principles of sentencing have no ranking.33 But accountability, deterrence and denunciation are frequently-cited purposes of sexual offending sentencing.34 The Court of Appeal has emphasised these purposes in cases of indecent assault,35 and in cases of rape.36 Accountability and deterrence especially are important where the relevant offending is ongoing familial offending.37 And strong denunciation is warranted where, as here, the sexual offending involves children.38 Achieving deterrence and denunciation frequently will require a sentence of imprisonment.39 Protection of the community also is a primary purpose of sexual offending sentencing.40
[48] My ultimate consideration is if “the sentence is a just one in all the circumstances”, having regard to “the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”.41
Starting point
[49]I begin with setting a starting point for your various offending.
27 Sections 7(1)(f) and 103(2)(c).
28 Sections 7(1)(g) and 103(2)(d).
29 Section 8(a), (b) and (f).
30 Section 8(e).
31 Section 8(h).
32 Section 8(g).
33 Moses v R, above n 13, at [4], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [37].
34 W (CA247/10) v R [2010] NZCA 561; Gillan v R [2015] NZCA 85; T (CA871/2012) v R [2015]
NZCA 83; P (CA747/2014) v R [2015] NZCA 349; and Stirling v R [2016] NZCA 550.
35 R v Lunjevich [2012] NZCA 454; and Salvaji v R [2019] NZCA 611.
36 H (CA123/12) v R [2012] NZCA 479; and D (CA801/2013) v R [2014] NZCA 369.
37 T v R [2019] NZCA 150.
38 Shaw v R [2014] NZCA 322 at [18]; and Paora v R [2011] NZCA 472.
39 ZZ v R [2011] NZCA 662 at [36].
40 See, for example, A (CA647/2014) v R [2016] NZCA 268 at [16]; Cant v R [2013] NZCA 513 at [91]; and Leonard v R [2013] NZCA 553 at [23].
41 Moses v R, above n 13, at [49].
—approach
[50] I distinguish your offending against AB from that against the other women. The two sets of offending attract different sentencing approaches and are to be determined by reference to different sentencing regimes. Given the scope and scale of your offending overall, each set better is addressed by identifying a lead offence as the basis for the sentence, before uplifting for the other offending.
[51] The discrete instances of historical offending, while occurring over a period of time, can be sentenced concurrently on the basis of their shared nature as sexual offending against children.42 To sentence each historical offence individually and cumulatively would be unduly complex and likely would result in a disproportionately high sentence.43 The response to that danger should not be to set an acceptable total sentence simply by imposing short sentences for each individual offence — that would be to trivialise your offending.44 The “standard solution” in such circumstances is to “make some of the sentences concurrent … so that the overall term of the sentence is appropriate”.45
[52]Similar considerations apply to your more recent offending against AB.
[53] I intend, then, to arrive at individual sentences for your two tranches of offending, each to be assessed on a lead offence/totality basis. Imposed cumulatively, I will arrive at a global end sentence, capturing the overall criminality of your offending.46
[54] Your historical offending ended in 1981, while your more recent offending took place between 2006 and 2008. The intervening quarter-century, and its changes in statutory penalties and sentencing levels, make your more recent offending sufficiently distant from your historical offending to warrant the two sentences (each already adjusted for totality) being imposed cumulatively.47
42 Sentencing Act, s 84(3)(b).
43 Section 85(2).
44 Titford v R [2017] NZCA 331 at [72].
45 Jeremy Finn and Debra Wilson Sentencing Law in New Zealand (Thomson Reuters, Wellington, 2021) at [6.14], citing R v Mahoni (1998) 15 CRNZ 428 (CA) at 435.
46 Harris v R [2018] NZCA 632 at [17]; and R v Xie [2007] 2 NZLR 240 (CA) at [16].
47 Sentencing Act, s 84. Courts have treated offending of the same type against different victims on
[55]I turn, first, to your historical offending.
—historical offending
[56] Your most serious historical offences are your rapes. Each occurred between 1967 and 1981. The maximum penalty for rape during that period was 14 years’ imprisonment. That penalty was changed to 20 years’ imprisonment in 1993.48 You are entitled to the lesser maximum penalty’s benefit.49 As I have explained,50 I do not assess your historical offending by reference to the current tariff decision on sexual offending. Instead, I will locate the starting point by reference to statements of principle and comparator cases on sexual offending in the period at issue.
[57]In 1978, the Court of Appeal identified:51
[O]ver the recent years … the median sentence [for rape] has continued to be from three to five years[’] [imprisonment] with 83 percent of all offenders sentenced to terms of imprisonment of between two years and seven years.
[58] More recent Court of Appeal statements indicate cases of multiple sexual offending against children and teenage girls (especially by those in positions of trust) are susceptible of a different analysis than the traditional guideline starting point of eight years’ imprisonment, thought appropriate for a single defended charge of rape against an adult female.52 “[R]epeated rape of a child … calls for the strongest denunciation”, making recourse to that ordinary starting point often inappropriate.53 And, in a case involving an adult family member’s continued abuse of a child aged nine to 13 over the period of offending, the Court said a sentence of 15 years’ imprisonment (being three-quarters of the maximum penalty) could not be seen as excessive.54
different occasions as being unrelated: see, for example R v Mwai [1995] 3 NZLR 149 (CA) at 158.
48 Crimes Amendment Act (No 3) 1993, s 2.
49 New Zealand Bill of Rights Act 1990, s 25(g).
50 See [44] above.
51 R v Pui [1978] 2 NZLR 193 (CA) at 198, noted more recently by the Court of Appeal in Ashcroft v R [2014] NZCA 551 at [16].
52 R v Proctor [2007] NZCA 289 at [21]–[25]; R v T (CA355/2008) [2008] NZCA 539; and the
authorities cited in R v S (CA64/06) [2007] NZCA 243 at [76]–[91].
53 R v T (CA251/02) (2002) 20 CRNZ 51 (CA) at [15].
54 At [15].
[59] While those comments were made in the context of a more contemporary sentencing regime (and hence the references to an eight-year starting point for a single charge,55 and the 20-year maximum penalty for rape56), their informing principle holds in assessing the culpability of your historical offending. That is, at sentencing, rapes of children should be treated more seriously than rapes of adults. To that extent, a starting point at the higher end of the historical range of two to seven years’ imprisonment is warranted on a conviction for rape.
[60] Anand v R, as you have heard the lawyers refer to, is a useful comparator. There, the Court of Appeal said contested charges of rape would, in the 1980s, attract a starting point of five years’ imprisonment where no aggravating features were present.57 Further, for a single charge of rape in respect of a young victim, a starting point of between four and seven years’ imprisonment would be justified.58
[61] In that case, a starting point of seven years’ imprisonment on the lead charge (a representative charge alleging rape of a 13 year old victim on at least six occasions) was “plainly available” given the repetitive nature of the offending.59 But the non- adjusted starting point should not have exceeded eight years’ imprisonment.60 The Court further noted adjusted starting points of between eight and 12 years’ imprisonment had been approved in other cases involving offending against multiple young victims in the period between 1969 and 1990.61 The Court said any of the rape charges in that case would ordinarily have warranted a starting point of between five and eight years’ imprisonment; each of the indecent assaults between two and four years’ imprisonment.62 That being so, the final starting point of 15 years’ imprisonment was not only available, “some judges may have adopted a starting point greater than 15 years”.63
55 Established in R v A [1994] 2 NZLR 129 (CA).
56 Crimes Act, s 128B.
57 Anand v R [2017] NZCA 566 at [30], citing R v Clark [1987] 1 NZLR 380 (CA) at 383.
58 At [30].
59 At [31].
60 At [31].
61 At [34], citing R v KJB, above n 17, at 50; and R v Accused, above n 14, at 609.
62 At [36].
63 At [37].
[62] Anand concerned five rapes and seven indecent assaults. While assessing the relative gravity of offending is not so straightforward as simple numerical comparison, your historical offending comprises eight rapes and 14 indecencies against young victims. Your offending arguably is more serious. In R v KJB, to which Anand refers, the defendant faced 16 charges of historical sexual offending taking place between 1969 and 1990. The Court of Appeal held:64
… an effective uplift of seven years[’] imprisonment on the notional [five] years starting point identified in Clark was justified. Gross abuse of [the defendant’s] position of trust and authority … the vulnerability of each of the victims, the premeditated, prolonged and repetitive nature of the offending, the degrading conduct of the offender and the inevitable severe harm caused to the victims together justify a starting point of 12 years imprisonment.
[63] I take the representative charge of your rape of EF as the lead historical offence.65 In setting a starting point for that charge, I then consider the aggravating and mitigating features of your offending.
[64] There is a number of aggravating features characteristic of your historical offending:
(a)the extent of harm suffered by the women, graphically illustrated in their victim impact statements;66
(b)abuse of your position of trust in relation to them;67
64 R v KJB, above n 17, at [50].
65 Whether the lead charge should be the representative charge of rape of EF or GH may not particularly be material. While EF asserts a much greater number of collateral indecencies, they are over a less-focused time period, than of GH while Mr Rihari was undeniably in his later 20s. I initially was attracted by that comparative precision to take the representative charge of GH’s rape as the lead charge. I have chosen not to do so because I have no victim impact statement from GH. If that is to signal she chooses to put Mr Rihari’s offending behind her, I should not exacerbate matters by taking Mr Rihari’s offending against her as the lead offending.
66 Sentencing Act, s 9(1)(d).
67 Section 9(1)(f). Offending against younger or vulnerable family members usually involves a breach of trust: L v R [2019] NZCA 676 at [52]; T v R [2018] NZCA 342 at [15]; and Howe v R [2010] NZCA 367 at [11]–[12]. And see R v Wihapi [1976] 1 NZLR 422 (CA), where breach of trust was cited as an aggravating factor in a case where the offender had sexual intercourse with his niece, who was in his care.
(c)the endemic and repetitive nature of your offending (its normalisation illustrated by the directions “you know what to do”; and EF’s attempts to avoid what she knew was to follow);68
(d)your offending included significant elements of degradation and cruelty;69
(e)the victims, by their ages and positions in the kainga’s hierarchy, were particularly vulnerable;70 and
(f)your offending was clearly premediated.71
[65] Section 9A of the Sentencing Act requires, in sentencing for cases of violence against children under 14 years of age, I must take into account:72
(a)the defencelessness of the victim(s);
(b)any serious or long-term physical or psychological effects on the victim(s);
(c)the magnitude of the breach of any relationship of trust between the victim(s) and offender;
(d)threats by the offender to prevent the victim reporting the offending; and
(e)any deliberate concealment of the offending from authorities.
68 Section 9(4)(a).
69 Section 9(1)(e).
70 Section 9(1)(g). This provision frequently is applied in cases of offending against children: R v Pateman [2017] NZHC 2401 at [44]; and R v Edwards [2018] NZHC 256 at [30]. Offences against children are regarded more seriously than a similar offence against an adult: R v Accused (CA291/90) [1991] 3 NZLR 405 (CA). In R v B [1986] 2 NZLR 751 (CA) at 753, the Court of Appeal said sexual offences against young children “rob [them] of their childhood”. And where a victim of violence is a family member and dependent on the offender for emotional and physical support the “aggravating factor of vulnerability almost inevitably will be triggered”: Solicitor- General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [27].
71 Section 9(1)(i). Impulsive sexual offending tends to be regarded as less serious than premeditated offending such as the grooming of children: R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750, at [37].
72 Following earlier case law to the same effect: R v Leuta [2002] 1 NZLR 215 (CA) at [77]–[79]; and R v Wilson [2004] 3 NZLR 606 (CA) at [43].
[66] I am not aware of any case in which s 9A has been applied in sentencing for sexual violence. But there is no obvious reason to exclude its considerations. Here, at least seven of your convictions inherently were for violent offending against a child under the age of 14 years (being the convictions for indecency with a girl under 12). While the wide date ranges for the other charges make it difficult to discern if the victims were aged under 14 years at the relevant times, I focus here on whether any of the additional s 9A aggravating factors were present in relation to those seven charges.
[67] The s 9A factors explicitly are in addition to any factors the Court may take into account under s 9.73 However, given I have already canvassed considerations of breach of trust, extent of harm and defencelessness as part of my general s 9 inquiry,74 I do not revisit them. But s 9A is relevant to the extent you made threats and concealed your offending. That is established to have occurred in connection with your acts of sexual violence on a victim aged under 14 years old (being your threat to kill EF’s mother and “love” her sisters if she told anyone what had happened).75
[68] Your historical offending has no mitigating features. None is contended by either your lawyers or those for the Crown.
[69] I therefore take a non-adjusted starting point of seven years’ imprisonment for the lead historical offence, being the representative charge of your rape of EF. I uplift that starting point by six years to 13 years’ imprisonment to reflect the totality of your historical offending.
[70] In my assessment, that starting point and uplift are within the applicable range, if appropriately toward its upper bound. A higher adjusted starting point could perhaps be justified. But, in totality, that would risk a sentence trivialising your offending against AB, to which I now turn.
73 Sentencing Act, s 9A(3).
74 See [64] above.
75 See [16] above.
—more recent offending
[71] The same aggravating and (lack of) mitigating factors apply to your more recent offending against AB. Your greater maturity at the time, and the self-appointed nature then of your whanau responsibilities (rather than your earlier nomination for whanau leadership), exacerbates your abuse of trust.
[72] I take the representative charge of unlawful sexual connection in respect of AB as the lead offence. In setting a starting point for that conviction, I refer to the applicable tariff decision, R v AM.76
[73] I agree with the Crown the characteristics of your more recent offending bring it within unlawful sexual connection band two, having “two or three of the factors increasing culpability to a moderate degree”.77 Although the presence here of at least four factors increasing your culpability otherwise could warrant placing your recent offending in the middle of that band, having regard for totality principles, I set the starting point at the bottom of the available range. Your lawyers concede that course is available.
[74] I therefore take a starting point of four years’ imprisonment for your more recent offending against AB.
Adjustment for personal factors
—previous convictions and good character
[75] No uplift is justified by your previous convictions, which are for comparatively minor dishonesty, nuisance and traffic offending during the 1980s, when you were in your 30s. I must be careful not to punish you a second time for them.78 There must be additional reasons of deterrence or public protection to justify any uplift. Those reasons could include the previous offending was similar in kind to the present
76 R v AM, above n 71 above.
77 At [117]. The relevant factors here increasing culpability are: planning and premeditation (at [37]); the vulnerability of the victim (at [42]–[43]); the scale of offending (at [47]–[49]); and breach of trust (at [50]).
78 Raroa v R [2014] NZCA 57 at [17]–[18]; Beckham v R [2012] NZCA 290 at [84]; and Orchard v R [2020] NZCA 529, [2020] 2 NZLR 37 at [39].
offending, was closely proximate to the present offending or demonstrated some consistency in offending.79 That is not the case here.
[76] I have struggled if your leadership role in your whanau justifies some credit for previous good character. Plainly, you and your immediate family have provided material support from your West Auckland home. But substantial credit is not available when an offender has offended over a longer period and the offending was concealed from the community.80 And here it includes offending taking advantage of that support provided to AB. Notably, your own lawyers do not seek any credit on this basis. Taken with your previous convictions, I conclude no credit is due under this head.
—advanced age and health
[77] You were born in late March 1951. You now are 70 years old. Any discount for age alone is limited.81 I accept your health difficulties, evident at trial, will make a long custodial sentence appreciably harsher in its impact.82 Some allowance for that fact is warranted, but I am provided with insufficient medical evidence better to quantify it;83 still less to consider your imprisonment would be ‘disproportionately severe’, such that a less restrictive community sentence may apply, as your immediate family seeks. I take judicial notice life expectancy for Māori men by 2017–2019 was approaching their mid-70s, but into non-Māori men’s early-80s.84 I will allow a 15 per cent discount on account of your advanced age and health.85
79 Te Hau v R [2013] NZCA 431 at [18]–[22]; and Bell v R [2017] NZCA 90 at [19].
80 King v R [2015] NZCA 475 at [31]; and R v Hearling [2009] NZCA 298 at [18].
81 M (CA91/2012) v R [2013] NZCA 325 at [56].
82 R v Mikus CA296/04, 26 October 2004 at [12] and [15]; and R v Gallagher (1993) 9 CRNZ 421
(CA) at 423–424.
83 A 1 September 2021 summary medical report, filed on the eve of sentencing, noted Mr Rihari had suffered a transient ischaemic attack in April 2020, and is prescribed medication for asthma/chronic obstructive pulmonary disorder, hypertension, hyperlipidaemia, and stroke protection. His past medical history include cachexia. None is explained further.
84 Stats NZ Tatauranga Aotearoa “National and subnational period life tables: 2017–2019” (20 April 2021) < “Discounts given for ill health have ranged from approximately 14–33%, depending on the severity of the health conditions”: Hastie v R [2011] NZCA 498 at [40], citing R v P (CA593/2008) [2009] NZCA 10 (14 per cent discount for cardiac impairment), R v B (CA41/07) [2007] NZCA 292 (17 per cent discount for cardiac impairment, hypertension and hernia problems), R v Luce [2007] NZCA 476 (30 per cent discount for recurrent renal failure) and R v Verschaffelt [2002] 3 NZLR 772 (CA) (33 per cent discount for unusual medical condition brought on by exposure to cold).
—childhood and background factors
[78] Past social, cultural or economic deprivation having some causal relationship with offending may diminish an offender’s moral culpability.86 In particular, Māori offenders may raise “ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity” where such can be shown to have contributed causatively to the offending.87
[79]No blanket rules apply to discounts for such factors:88
Nor is there a clear unifying principle for applying discounts for deprivation. Rather, personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues. “Deprivation” is in many cases difficult to separate from these other factors because it is associated with and explanatory of them. What is tolerably clear, is that larger discounts tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender. Mercy is another apparent reason.
[80] I must be careful not to conflate correlation with causation: “many people with disadvantaged backgrounds do not commit criminal offences, and many law abiding people remain so despite difficult lives”.89 While courts have at times countenanced childhood sexual or physical abuse suffered by the offender in their youth as a mitigating factor,90 any credit is likely to be limited.91
[81] There must be evidence supporting a view the abuse suffered by the offender contributed materially to his or her offending.92 Absent a causal nexus, the fact of abuse cannot itself reduce culpability, although it may independently be a mitigating factor.93 And, while social deprivation is a relevant criterion in assessing the appropriate discount for deprivation, the offender’s own choices remain salient: “the decisions made by the offender … may weaken that linkage between background and
86 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159]–[162].
87 At [159].
88 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].
89 R v Patangata [2019] NZHC 744 at [45].
90 R v W (CA271/96) (1996) 14 CRNZ 132 (CA).
91 R v Accused (CA499/97) (1998) 15 CRNZ 481 (CA); and Overton v R [2011] NZCA 648.
92 R v Whiu [2007] NZCA 591 at [32]; Tuau v R [2012] NZCA 146 at [35]; and R v Pitceathly [2010] NZCA 95.
93 Davidson v R [2011] NZCA 356.
index offence”.94 The duration of even your Northland offending, which continued after you had left your kainga and were engaged in a wider world, limits the extent to which your earlier isolation should weigh in your favour. And that balance further is offset by your return to comparable offending some 25 years later.
[82] All the same, Ms Oakley’s report offers compelling insight into your cultural background, and explicitly draws causal linkages between those factors and your offending. I am satisfied some discount for deprivation is warranted. The appropriate amount cannot readily be discerned by reference to past judicial practice, given the lack of cases involving comparable isolated and unstructured communities. And there is this: so much as you may have been affected by your background to offend as you have, so too have the women against whom you have offended.
[83] On balance, I will apply a discount of 10 per cent under this head. That is at the lower end of the range claimed by your lawyers.
—youth at time of the offending
[84] Your lawyers also claim a discount for your youth at the time of your historical offending. But you were an adult, at least 20 years old,95 for the vast majority of your offending, although 15 years old at the earliest possible time for your offending against IJ. For the balance of your historical offending, you were at least 18 years old in respect of EF, and for the rest well into your 20s. From the other end of the date ranges, your historical offending concluded when you were in your late 20s–30 years old.
[85] Appellate authority is to the effect that 21 years of age is at the upper end of the range at which a youth discount could be applied, and a 25-year-old is ineligible for such a discount.96 A youth discount predominantly is afforded by the possibility of rehabilitation. Regrettably, notwithstanding your stated willingness to undergo whatever rehabilitation I may order, such prospects do not carry much weight here. You are now in your 70s. In other cases, a 53 year old offender was thought to have
94 See Purua-King v R [2020] NZCA 61 at [9], in which an appellant’s ongoing gang involvement “engag[ed] other sentencing considerations which may preclude a discount”.
95 Age of Majority Act 1970, s 4(1).
96 Martin v R [2016] NZCA 213 at [13]–[14]; and P (CA866/2013) v R [2014] NZCA 211 at [11].
passed the age when rehabilitation was in prospect;97 a 50 year old had little prospect of rehabilitation, given his history of offending and failure to take responsibility for his actions.98 A failure to take responsibility or a tendency to rationalise offending suggests rehabilitative efforts are less likely to be effective.99 And offending taking place over a long period tends to suggest the offender’s rehabilitative prospects are diminished.100 These considerations apply to you.
[86] In cases of serious child abuse, “youth alone does not automatically justify leniency”.101 None of the reasons usually cited for youth to operate in mitigation obviously is present here.102 And, even if some allowance was made for your youth, it obviously could apply only to your earliest historical offending.
—other possible discounts
[87] No other discounts are available to you. You have not expressed remorse; you continue to disclaim your offending.
—summary of discounts
[88] From my starting point, I will apply a 25 per cent discount, being a 15 per cent discount for your advanced age and ill health, and a 10 per cent discount for background factors causative of your offending.
End sentence
[89] Applying that 25 per cent discount to my 13- and four-year starting points results in a global end sentence of 12 years and nine months’ imprisonment. It comprises:
97 Opetaia v R [2011] NZCA 621 at [40].
98 Parry v R [2016] NZCA 72.
99 Muliipu v R [2013] NZCA 257; C v R [2018] NZCA 628; and Rapana v R [2013] NZCA 62.
100 Taylor v R [2017] NZCA 574 at [26].
101 R v Accused (CA265/88) [1989] 1 NZLR 643 (CA) at 655.
102 For example, reasons of youthful indiscretion (Arahanga v R [2014] NZCA 379 at [26]); susceptibility to outside influences (Churchward v R [2011] NZCA 531); inability to appreciate the gravity of the offending (Overton v R, above n 91); a younger person’s heightened capacity for rehabilitation (Churchward at [77] and Overton at [28]); or the disproportionately harsh effect of imprisonment on an adolescent (R v Chankau [2007] NZCA 587 at [26]).
(a)nine years and nine months’ imprisonment for your historical offending, taking the representative charge of rape of EF as the lead offence, and sentencing concurrently the remaining seven charges of rape, seven charges of indecency with a girl under 12 years of age and seven charges of indecency with a girl between 12 and 16 years of age and
(b)three years’ imprisonment for your more recent offending against AB, imposed additionally on your historical offending sentence, taking the representative charge of sexual violation by unlawful sexual connection as the lead offence, and sentencing concurrently the remaining charge of sexual violation by unlawful sexual connection and two charges of doing an indecent act on a young person.
Standing back, I am satisfied in all the circumstances — having regard for the purposes and principles of sentencing, and especially those of particular relevance in sexual offending cases — your end sentence is just.
Minimum period of imprisonment
[90] Under s 86 of the Sentencing Act, as I am to sentence you to terms of imprisonment each of more than two years, I also may impose a minimum non-parole period for such imprisonment, separately from the fixing of that sentence.103 The Crown suggest you should serve half your sentences without possibility of parole. An MPI may be warranted where the offending is so serious that release on parole, necessarily only after serving one-third of the sentence, would be an insufficient response in the eyes of the community.104
[91] As I have said,105 issues of accountability, denunciation and protection of the community commonly are cited in cases of prolonged sexual offending.106 Factors
103 R v Brown [2003] 3 NZLR 670 (CA) at [35].
104 Sentencing Act, s 86(2); R v Gordon [2009] NZCA 145 at [15]. But see also Cash v R [2021] NZCA 369 at [37].
105 See [47] above.
106 See also Pomare v R [2015] NZCA 191; Tiumalu v R [2019] NZCA 234; and K v R [2020] NZCA 95.
favouring an MPI have been held to include a lack of remorse,107 denial of wrongdoing,108 repetition of offending,109 and the offender’s lack of insight into his or her actions.110 All appear to be present here. The offender’s level of culpability is a central consideration.
[92] But, as your lawyers say, an MPI is not available in respect of offending carried out before September 1993.111 To hold otherwise would be to breach the prohibition on retrospective penalties. That means only your offending against AB could be subject to an MPI.
[93] You will not be eligible for parole until you have served one-third of your total sentence: that is, until after four years and three months’ imprisonment.112 As that is longer than the whole of your three-year sentence for offending against AB, the question of an MPI therefore is redundant. I will not impose one.
Sentence
[94]Mr Rihari, please stand:
(a)on the historical charges, I sentence you to nine years and nine months’ imprisonment;
(b)on the more recent charges, I sentence you to three years’ imprisonment, to be served cumulatively on the prior sentence.
That is a combined sentence of 12 years and nine months’ imprisonment. You may stand down.
—Jagose J
107 Pooley v R [2011] NZCA 598; and McLennan v R [2011] NZCA 455.
108 K v R, above n 106; and Ali v R [2019] NZCA 35.
109 Gerbes v R [2012] NZCA 281.
110 Rapana v R, above n 99.
111 Davies v R [2011] NZCA 546, [2012] 1 NZLR 364 at [60] and Robinson v R [2016] NZCA 188 at [6].
112 Parole Act 2002, ss 75 and 84(4).
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