R v S HC Auckland CRI 2009-092-15555
[2011] NZHC 56
•15 February 2011
NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2009-092-15555
THE QUEEN
v
S
Hearing: 15 February 2011
Appearances: B Tantrum and R Savage for Crown
T Saseve for S Judgment: 15 February 2011
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Auckland [email protected]
T Saseve [email protected]
R V S HC AK CRI 2009-092-15555 15 February 2011
[1] Mr S, you appear for sentence this morning having been found guilty by a jury in December of a considerable number of violent and sexual offences.
Offending background
[2] You are 27 years old. You were born and raised in Samoa where you attended school until the age of 17 years and then obtained employment for two years. From 2002 you lived and worked in American Samoa, but in 2004 you came to live in New Zealand with your mother, who had been living here for some time. Also living in the household were two nephews, M and P. You were the only adult male in the household and as such were the main breadwinner. You also assumed a good deal of authority in the house as the senior male there, and in many ways became responsible for P, who was just 10 years old when you arrived from Samoa. Between 2005 and 2009 you shared a bed with P, when he was aged between 11 and
15 years.
[3] During this period, you controlled and dominated P’s life to a very considerable degree and took advantage of your dominance by sexually offending against him on a more or less continuous basis. You sexually violated P by engaging in anal intercourse with him, requiring him to masturbate you and forcing him to suck your penis. P was not a willing participant. He complied because you were older and bigger than him and in a position to force yourself upon him. He was scared of you. On occasions you used physical force to secure his compliance. The jury found you guilty of a number of representative counts alleging offending of this sort over a period of about four years.
[4] The guilty verdicts involved six representative counts of sexual violation by unlawful sexual connection for which the maximum penalty is 20 years imprisonment; one representative count of doing an indecent act on a child under the age of 12 years, for which the maximum penalty is 10 years imprisonment; and three representative counts of doing an indecent act on a young person under the age of 16 years, for which the maximum penalty is seven years imprisonment. The
offences relating to indecent acts on young persons are also known as sexual conduct offences, and from this point on I will refer to them as such.
[5] This offending culminated in an incident on 27 July 2009, which is the subject of a separate count of sexual violation by unlawful sexual connection on which you were also found guilty. Early in the morning on that day, you again sexually violated P while you were sharing a bed. You pulled off his pants, turned him over onto his front and inserted your penis into his anus. Although he told you to stop, you continued to violate him.
[6] In the morning you went to work but P stayed home. He was in significant pain and says that he sat on the toilet for a long time because he was constipated. When the pain became too great he resorted to sniffing paint thinner, which alleviated the pain somewhat. But when you came home and found that P had been sniffing solvents, you embarked upon a prolonged assault on him, which you seem to have considered appropriate as a disciplinary measure. Over a sustained period you beat P with an extension cord on his face, ribs, back, feet and legs; you threw a mug containing hot liquid at him. The mug hit him above the eye with enough force to result in the handle breaking off. You threw a kettle containing boiling water which struck P in the ribs; you hit his feet with the flat part of a hammer three or four times, and also used a heavy iron item intended for holding down mats. That is P’s account of the assault. Although you admit that the incident occurred, you say that the assault was limited to the use of an extension cord and your fists and feet.
[7] P suffered a broken arm, a swollen ear and a degree of bruising to his body and limbs. Next day he was found by his mother who lived nearby. He was lying on his bed in a foetal position. She took him to hospital.
[8] You were charged with assault and released on bail. One of the conditions was that you were not to contact P.
[9] I pause here to say that, while it is possible that some aspects of P’s evidence
about the assault may be inaccurate, that is perhaps not surprising given the ordeal to
which you subjected him. You did not give evidence at your trial, and so your contentions are available to the Court only at second-hand, and not on oath.
[10] The jury found you guilty on a count of wounding with intent to cause grievous bodily harm, for which the maximum penalty is 14 years imprisonment. The severity of P’s injuries rendered that verdict virtually inevitable.
[11] By reason of my overall approach to sentencing in this case, it is not necessary to make precise findings about the detail of the assault. P’s injuries are undisputed. Neither is it disputed that the assault went on for a very long time and occurred in various rooms in the house.
[12] Prior to that incident in July 2009, there had been an earlier notable assault by you on P during 2008, when he had lied to you about having forgotten his school bag, which was in fact lost. On that occasion, for reasons which remain unexplained, you chose to require P to get into your car; you drove him to the McDonald’s carpark nearby in Otara, and there, in public, set about disciplining him. After slapping his face, you coerced him into putting out his tongue, at which point you used a pair of pliers both to inflict a wound on the tongue and to pull the tongue forward. P’s evidence was that his tongue became grossly swollen and he was in excruciating pain for some days. He still bears a scar from that assault.
[13] In respect of that incident, the jury found you guilty of a charge of assault with a weapon, for which the maximum penalty is five years imprisonment.
[14] We come then to the events of 19 September 2009. At that time you were on bail awaiting trial for the assault in which P suffered a broken arm. You were forbidden to see him, but in breach of that condition, you engineered a situation in which he was picked up in a car by his brother M, and a friend K, and driven to a point where you were waiting. You got into the car and after a time the vehicle pulled into the carpark of the recreation centre in Otara. K, fearing what might ensue, ran away. That left M sitting in the front passenger seat, P sitting behind him, and you sitting behind the driver’s seat. You brought with you a recently purchased hunting knife, the blade of which was some 10 cm in length.
[15] You challenged P about his role in the forthcoming Court case and then stabbed him with the knife, once in the back and once in the neck. The knife penetrated his rib cage near the heart, piercing the lung and passing through the lobe. In all, the knife penetrated P’s body for virtually the whole of the length of its blade, about 10 cms.
[16] M got out of the car, ran round the vehicle, punched the window closest to you out, opened the door, and managed to wrestle the knife from you. During the course of the struggle, M suffered a wound to his hand. P ran to the main road where he collapsed. The police and an ambulance were called. He was gravely injured and required immediate life-saving surgery. The explanation you gave to the police was that you had purchased the knife as a gift for M, and it had been brought along so that he could inspect it. You said that there had been a scuffle over physical possession of the knife between you and M, as a result of which P was accidentally stabbed. That explanation is simply not credible. The knife was buried in P’s body to the hilt. That could not have occurred had there merely been a scuffle over the knife between you and M. You may count yourself fortunate that you did not ultimately face a charge of murder.
[17] In relation to that incident, the jury found you guilty on three separate counts. First there was a count of wounding with intent to cause grievous bodily harm. That concerns the stabbing of P. The maximum penalty for that is 14 years imprisonment.
[18] Then there was a count of wounding with reckless disregard which concerns injuries suffered by M as you struggled with him over possession of the knife, following P’s stabbing. The maximum penalty for that is seven years imprisonment.
[19] Finally, the jury found you guilty of attempting to pervert the course of justice, for which the maximum penalty is seven years imprisonment. The jury plainly accepted the Crown argument that your purpose in stabbing P was to dissuade him from continuing to support the police case against you, arising out of the earlier assault.
[20] I turn to your offending against V, P’s sister. You first came to New Zealand on 22 February 2004. At that time you saw something of V who was living with her mother nearby. She was then 12 years old. Normally V was collected from intermediate school by her grandmother, but on one particular day prior to your return for a period to Samoa on 21 May 2004, you collected her from school in a car. You were going to give her a driving lesson. You took her to Maraetai Beach where she became apprehensive about your intentions. In the car you stroked her legs. You then took her by the hand to a secluded spot along the shoreline where you took off her panties after she declined to do so, got her to lie down on the grass and had sexual intercourse with her. She remembers that you gave her your white singlet so that she could wipe herself. You told her not to tell anyone.
[21] You returned from Samoa early in 2005. By this time V was 13 years old. At times she stayed with an aunt. You arrived at the aunt’s house and let yourself in at a time when the aunt had gone shopping. You took V into a bedroom, got her to lie down on a mattress, and again had sexual intercourse with her. Her evidence was that she was crying throughout the incident, and that after a while she tried to push you off because she had become too sore, but you held her down while you continued. Again you told her not to tell anyone.
[22] Through your counsel at your trial you denied that the Maraetai incident ever occurred. In the pre-sentence report the writer notes your comment that at that stage you had neither a driver’s licence nor a car and that you did not know where Maraetai was. However, that was not put to V, nor did you give evidence at your trial.
[23] You do accept that you had sex with V at her aunt’s house, but contend that this was by prior arrangement and with her consent. By that stage you say you had developed a mutual fondness, and that you had both decided you would seal your relationship with a single act of sexual intercourse. At that time V was just 13; you would have been in your early 20s. Unsurprisingly, the jury did not accept your contentions, advanced through your counsel.
[24] The jury found you guilty on two counts of rape against V. The maximum penalty on those counts is 20 years imprisonment.
[25] At this point I need to mention one further quite reMable occurrence. On 26 and 27 October 2010, just a month before the trial, you made a number of phone calls (more than a dozen in all) from prison where you were on remand, to P’s house. You spoke to P and his grandmother. The calls were aimed at getting P to change his statement so that the case against you would collapse. Your calls were persistent and your requests were insistent. You gave P elaborate directions about the detail of what he should do in order to get his statement changed, to the point of preparing a letter which you posted from prison, which set out the way in which P himself should write to the Court.
[26] A particularly noteworthy aspect of these calls is that although you were aware that they were being recorded by the prison authorities, you never suggested to P that his allegations against you of sexual offending were untrue. The jury might well have inferred that had P’s story simply been concocted, as you contend, you would have said something to that effect during those phone calls.
[27] In the end, although P was plainly under enormous pressure from you and other members of his family, he did give evidence which accorded with his initial statement to the police.
[28] Of course, in communicating with P at all, you were in breach of your bail conditions, but given that the stabbing also occurred when you ought not to have been communicating with him, it appears you are not unduly concerned about complying with Court orders.
[29] There is a further curious aspect to these phone calls. You indicated to P in one call that when you were released from prison you proposed to organise a name change for him. You said it was time for him to change his first name, and you proffered two possible alternatives for his consideration. Given that you were simply his uncle who had come from Samoa in order to assist the family finances, it is difficult to see how and why you would feel it appropriate to direct P to change his
name unless, as he alleges, he was indeed under your thumb, and subject to your dominating influence. In my view, the name change proposal supports the Crown argument that you considered P to be obliged to act at your direction in important aspects of his personal life.
Victim impact statements
[30] P is now 16 years old. He has recently seen Dr Suzanne Blackwell, an expert clinical psychologist, who is greatly experienced in dealing with victims of sexual abuse. Dr Blackwell reports that P was confused about his sexuality as a result of the offending, and indeed, was worried that he himself might be gay. Those concerns seem to be dissipating and he now has a girlfriend. He reported to Dr Blackwell that the offending, and especially the anal penetration, was very painful, but he told no- one because he was frightened of further beatings by you. Moreover, he was ashamed and embarrassed and had nobody in whom to confide.
[31] Dr Blackwell notes the point P made in his evidence, namely that, because you exercised a great deal of control over his day to day movements, he was effectively confined, not only in the bedroom, but after hours and on weekends. At those times he was mostly in your company. You spent much of your spare time repairing cars for others. P often participated in those activities. Although there was evidence from the family that this was because he wanted to be with you, his own evidence was that he really had no alternative.
[32] Dr Blackwell’s report says that P contemplated suicide as an eventual way out. He described to her feelings of despair and helplessness. An aggravating feature from P’s point of view was the intense moral pressure under which he was placed by you and other members of the family to withdraw his statements. Offending of this sort often splits families apart. The pressure upon him to refrain from giving evidence heightened his ordeal. This morning Mr Tantrum in his submissions has referred to a passage in Dr Blackwell’s report to the effect that P seems at the moment to be asymptomatic. If that is so it is attributable to his resilience, but as she points out, it sometimes takes decades for the true effects of sexual offending to become manifest.
[33] V is now 19 years old. She says she has tried to blank out what occurred. She remains embarrassed by the incidents but seems to have overcome a great deal of the trauma, especially by keeping away from you. She says she feels much safer now you are in custody.
[34] M is now 21 years old. He suffered a significant cut to his right thumb, but was not seriously hurt and seems to have put the incident behind him to a large extent.
Personal circumstances
[35] Since coming to New Zealand in 2004 you seem to have been able to find and retain employment as a machine operator and welder. You have a number of brothers and sisters with whom you are on good terms, although there are difficulties in your relationship with P’s mother. You are unmarried and have no children. You have no prior convictions in New Zealand and say you have none in Samoa either.
[36] You remain in denial of all of this offending, except to the extent that you accept responsibility for going too far when you disciplined P following the paint sniffing, and you accept that there was one act of sexual intercourse with V, although of course you say she consented. Everything else is denied. Of special note is your contention that the stabbing was simply an accident. The jury did not accept that explanation. In my opinion they were perfectly correct to find you guilty on the wounding count.
[37] The report writer says that you consider P and V were motivated by malice when they reported you to the police for the sexual offending. You believe they were angry with you because you disciplined each of them at times. There is a passage in the pre-sentence report in which you are said to have apologised to your victims and asked for their forgiveness, but it is difficult to place any great weight on that, in the light of your very limited acknowledgement of the offending. This is certainly not a case in which any allowance can be made in the eventual sentence for a genuine expression of contrition or remorse.
[38] Having said that, the picture is not completely bleak. I have carefully read each of the references furnished to the Court by Mr Saseve, including those handed up today. Since you came to New Zealand you have been in steady employment with the same employer, and plainly have been a valued and trusted employee and workmate. That suggests a degree of stability in your life. So do the various personal references, chiefly from members of your family. From them it appears that you are a central figure in your wider family, habitually given to providing assistance both practical and emotional when required. You are a practising Mormon and heavily engaged in church activities and in the social life of that church and its members. Those belonging to the Mormon church are not permitted to drink alcohol and it seems you do not do so. Neither is there any suggestion of drug taking.
[39] These offences are, on the face of it, quite out of keeping with other aspects of your life. Regrettably however, that is not uncommon where sexual abuse of young people is concerned. Only limited weight can be accorded the more positive aspects of your life and background.
Sentencing principles
[40] Mr S, these offences involved both violence and extensive sexual abuse. There is therefore a particular need to hold you accountable for the harm done to P and V, to promote in you a sense of responsibility for, and an acknowledgement of, that harm, and to adequately consider the entitlement of the community to be protected from offending and offenders like you.
[41] On the other hand, as Mr Saseve properly submitted, the Court must do what it can to promote your rehabilitation and reintegration into the community.
The end sentence
[42] Mr S, I am required to discuss in detail, certain aspects of these offences and to provide reasons for the sentences ultimately imposed. I think it only fair to let you know now what the sentence of the Court will be at the conclusion of these reMs.
You will have gathered from your discussions with Mr Saseve and from the submissions made today by him and by counsel for the Crown, that in the light of the totality of these offences, a very substantial term of imprisonment must be imposed.
[43] The sentence will be 19 years six months imprisonment. I propose also to make an order that you serve a minimum period of nine years six months imprisonment.
The starting point
[44] In this case there are 18 counts, multiple victims and a variety of offences. The provisions of ss 84 and 85 of the Sentencing Act 2002 are accordingly engaged. Totality principles require the Court to impose a sentence that accords with the overall gravity of the offending, and no more. Here it is possible to group the offences and to impose cumulative sentences as between the groups, but to do that would then require a significant totality reduction. It is therefore necessary to impose concurrent sentences in some instances, even though the offences concerned
may be thought to be disconnected.[1]
[1] R v O’Leary CA258/05, 3 March 2006; s 85(3) Sentencing Act 2002
[45] The Crown submits that the offences should be dealt with in two groups, by distinguishing between sexual and violent offences and Mr Saseve agrees. I accept that to be a valid approach, but I prefer to deal with the offending by grouping together all the offences up to and including 27 July 2009. That covers all of the sexual offending, the assault with a weapon (the pliers incident), and the count of wounding with intent to cause grievous bodily harm concerning the assault of
27 July 2009 which has become known as “the hiding”.
[46] These offences were all part of your abusive and controlling relationship with both P and V. But I accept that it is appropriate to adopt a cumulative approach to the events of 19 September 2009, which incorporate the stabbing, the wounding of
M, and the count of attempting to pervert the course of justice.
[47] That incident was separate in time from all of the other offending, and has its own features. Among them is the fact that these offences were committed while you were on bail and that the incident occurred two months after the sexual offending terminated. Those are important considerations when considering whether to make a sentence cumulative rather than concurrent.[2]
Sexual offending against P and V
[2] R v Wallace [1983] NZLR 758 (CA).
[48] In R v AM[3] the Court of Appeal outlined tariff guidelines for sentencing in cases of sexual violation by rape or unlawful sexual connection. The Court of Appeal identified four sentencing bands. Bands 3 and 4 cover the most serious offences. The prescribed starting point for band 3 is between 12 and 18 years imprisonment, and for band 4, between 16 and 20 years imprisonment. It is to be noted that the bands overlap, so that a starting point that is appropriate for a case in the upper reaches of band 3, will be much the same as that for a case in the lower part of band 4.
[3] R v AM [2010] 2 NZLR 750 (CA).
[49] The classification of offences is achieved largely by reference to a number of aggravating factors discussed in AM. Several of those factors are present here. Among the most important is the degree of vulnerability of your victims. P and V were both relatively young at the time of these offences; P was between 11-15 years and V between 12-13 years. Moreover, there was a disparity in age between them and you; you were into your twenties, emotionally mature, bigger and stronger. Each was dominated by you in your capacity as the senior male figure in your household. You seem to have enjoyed a degree of autonomy and moral authority.
You certainly seem to have had the support of your mother.[4]
[4] AM at [42].
[50] A second related factor is the breach of trust inherent in the offending.[5]
There was a degree of trust inherent in the family relationship between you on the one hand and each of your two victims on the other. You had a particular
responsibility by virtue of your relationship with them to provide love, care and support. Instead you engaged in very serious criminal offending against them.
[5] AM at [50].
[51] Then there is the scale of the offending itself.[6] Extended abuse over a long period of time will be considered more serious than isolated or single acts. Here, the offending against P occurred over a four year period. I accept that there were times when there was no offending, particularly when others were sharing the bedroom, but on P’s evidence, which the jury plainly accepted, there were times also when the offending occurred about twice a week.
[6] AM at [47].
[52] A further factor is the degree of planning and premeditation involved in the offending.[7] That is particularly so in respect of the two offences against V which involved picking her up from school and taking her to a secluded place on the one hand, and then taking advantage of her aunt’s absence from her house on the other.
[7] AM at [37].
[53] Another factor is the scope of the offending, or the degree of violation involved. In respect of P, there were regular instances of anal rape, masturbation and oral sex. Moreover, and in my view this is important, the offending against P involved a violent dimension. He says he was repeatedly assaulted or punched in the head if he did something wrong. There was also a degree of domination in connection with the offending itself. P gave evidence that he was effectively physically coerced into co-operating with you, and on one occasion you shut him in the bedroom to prevent his escape.
[54] I accept however, that the degree of violence associated with the actual offending itself in respect of both P and V was relatively moderate.
[55] In AM[8] the Court of Appeal held that band 4 will generally be appropriate for offences against multiple victims, particularly in the familial context.
[8] AM at [48].
[56] I have considered four sentencing cases decided since AM where a band 4 classification was adopted.[9] Of these cases, W v R is particularly instructive. There,
the appellant had been convicted of eight offences of sexual violation and injury against his stepdaughter A, and sexual conduct with his daughter B. The offences against A were four representative counts of unlawful sexual connection over a two and a half year period, and included rape, connection between her mouth and his genitalia and vice versa, and digital penetration. The appellant also punched A’s face repeatedly for being truant from school, which led to a charge of injuring with intent. Over this period, A was 13 to 15 years old.
[9] R v Harrison HC New Plymouth CRI-2009-043-3587, 8 November 2010; W v R [2010] NZCA 561,
R v HK HC Auckland CRI-2009-009-6055, 1 June 2010; R v Harwood [2010] NZCA 545.
[57] There was also a sexual conduct charge against B. That was an isolated incident where he had mistaken B for A when the girls had changed beds. B was around 12 years old at the time.
[58] The Court of Appeal considered that the aggravating factors included breach of trust, vulnerability, the scale of the offending and premeditation. The Court acknowledged also the degree of harm to the principal victim and the element of threatened violence, but did not consider the harm factor to be exceptional and indicated there was no actual violence additional to that inherent in the act itself. The Court of Appeal allowed the appeal by reducing the starting point chosen in the District Court of 18 years imprisonment to 17 years imprisonment.
[59] I am satisfied that your case falls at the lower end of band 4. Alternatively, it must be placed at the top of band 3 where the starting point would be the same.
[60] The present case is similar to W v R, given the prolonged period of sexual offending against P, and more isolated incidents of sexual abuse against V. The ages of the victims in W v R are also similar to the victims in the present case. But the offending against V was more serious than the sexual conduct involving the second victim in W v R and the period of sexual abuse against the principal victim was longer here.
[61] It is relevant also to mention the Court of Appeal decision in Harwood. There the appellant had performed multiple acts of rape and indecent acts on the
female victim who was a relative of the offender. She was aged between six and 14 years. During that period the appellant was aged between 17 and 24 years. The Court of Appeal upheld the District Court Judge’s starting point of 18 years imprisonment, which the sentencing Judge had reduced to 16 years in order to take into account the offender’s youth at the time of the offending. The Court of Appeal considered the starting point imposed to have been at the top of the available range, but not outside it.
[62] There, the age of the victim was significantly lower than here, and the offences continued over a period of eight years. Although there was only one victim in that case, it might properly be thought that the offending in Harwood was marginally more serious then here. I consider that a starting point of 17 years imprisonment is appropriate here. That encompasses all of the sexual offending against both P and V.
[63] But there must be an uplift. In the first place it is necessary to take into account the assault with the pliers on P, and what has become known as the hiding inflicted on him on 27 July 2009. The assault with the pliers occurred in 2008 when the sexual offending was continuing. I regard it as part and parcel of the dominating character of your relationship with P. The hiding was even more closely connected with the sexual offending, because it occurred in the context of solvent abuse by P, to which he says he resorted to help him cope with the pain following your last sexual assault on him the previous night.
[64] I add six months for the assault with the pliers, and 12 months for the hiding. That takes the starting point to 18½ years imprisonment.
[65] It is important to mention also the phone calls from prison. In my view they are plainly an aggravating factor. An attempt by an offender to dissuade a witness from giving evidence will often justify an uplift.[10] In this case I have decided not to impose an uplift for that. I simply place on record what occurred. In a sense it adds
to the emotional and moral pressure placed by you on P over a period of many years.
[10] R v C CA463/00 1 August 2001 and R v Vise HC Wellington CRI-2003-085-2077, 5 November 2004.
[66] There are no mitigating factors in respect of these offences.
The incident of 19 September 2009
[67] I turn to consider those offences which I have excluded from my discussion to date. The counts concerned are those of wounding with intent to cause grievous bodily harm, wounding with reckless disregard, and attempting to pervert the course of justice.
[68] Among these, the most serious is plainly the wounding charge. Sentencing for such offences is also covered by a tariff authority: R v Taueki[11]. Again, the Court set out three bands to assist in sentencing for grievous bodily harm offences. The Court identified a number of aggravating factors, holding that cases in which two or three such factors were present would fall into band 2, and so attract a starting point of five to 10 years imprisonment. Those with three or more such factors were band 3 cases, calling for a starting point of nine to 14 years imprisonment.
[11] R v Taueki [2005] 3 NZLR 372.
[69] Here, at least six aggravating factors are present. This offending involved extreme violence, in that P was stabbed twice in the back with a long hunting knife. The stabbing caused one deep wound to his neck and one to his chest area that punctured his lung. A second consideration is the seriousness of the injuries; potentially they were fatal. Although in a sense the actual consequences might be considered to be a matter of luck, the fact that you chose to stab P in a part of his abdomen which contained vital organs is of plain relevance.
[70] The third factor involves the use of a lethal weapon. You brought a hunting knife with you. The reason you gave for that was simply spurious; the presence of the knife is a significantly aggravating factor.
[71] Then there is the point that the assault would never have occurred but for your desire to dissuade P from continuing to assist the police in your prosecution for
the hiding, the earlier assault. Again, that is a serious aggravating feature.
[72] Next there is P’s obvious vulnerability, particularly in the predicament in which he found himself. The child-proof locks in the car had been activated and so he was unable to escape, even though he had identified a significant risk by reason of your behaviour, and the line of your questions. In a physical sense he was completely at your mercy.
[73] Finally, there is the element of premeditation. A degree of planning must have been involved in the scheme by which P was lured away from his home and persuaded to get into a car which later picked you up.
[74] Having identified the foregoing factors, it is appropriate to say that there is a substantial degree of overlap between some of them. For example, extreme violence and serious injury are, at least here, co-extensive to a degree, and the use of a knife is a factor in the determination of the extent of the violence actually employed.
[75] I consider this case to fall at about the middle of band 2 in Taueki and to attract a starting point of seven years imprisonment. That is consistent with the recent cases which I have considered.[12] Manning and Wilson are particularly helpful. In Manning a starting point of five and a half years imprisonment was adopted where the intoxicated appellant, having approached the victim’s girlfriend with a large knife and threatened to kill the victim, was tackled by the victim who received two stab wounds, one of which penetrated 13 cm into his body, nicking a kidney.
[12] R v Manning CA323/09 6 October 2009; R v Wilson HC Auckland CRI-2006-092-15152, 12 May
[76] In Wilson a starting point of eight years imprisonment was adopted where the prisoner, also intoxicated, stabbed his son three times in the back and chest, and stabbed a second victim in the chest.
[77] Konui, referred to by the Crown, involved a starting point of nine years imprisonment, but that was arguably more serious than the present case. There, the
offender had stabbed the victim several times in the back with a large knife, and
struck him about the head and throat. He also stabbed the victim in the lower back after he fell to the ground.
[78] Mohammed, also relied upon by the Crown, involved an added element of home invasion in circumstances where the appellant had been asked to leave a neighbour’s party and returned, carrying a knife, to stab his victim three times. A starting point of eight years imprisonment was imposed.
[79] I consider the Crown’s proposed starting point of nine to ten years imprisonment to be too high. Seven years represents an appropriate starting point, but I add three months to recognise the offending against M, and a further three months to reflect the fact that you were on bail at the time of this offending, and ought never to have been in P’s company in the first place. There is no need for a further uplift to reflect the perversion charge.
[80] That makes an overall starting point of seven and a half years.
Totality
[81] The aggregate of the two cumulative sentences is 26 years imprisonment. A term of that order would be out of keeping with the gravity of your overall offending. I therefore accept that there is a need to impose a lesser sentence. Sometimes it is necessary to make a substantial adjustment in order to reflect an appropriate overall sentence. In considering the extent of that adjustment I have reviewed several recent authorities.[13]
[13] R v Ali CA466/93 23 June 1994; R v Mist [2007] NZCA 352; R v Kissling HC Auckland CRI- 2007-092-18306, 8 December 2009; R v Pitceathly HC Tauranga CRI-2007-042-4245, 21 August 2009.
[82] Counsel for the Crown submits that the end sentence ought to be 20 or 21 years. As indicated earlier, Mr S, I consider a slightly lower figure to be appropriate.
[83] In imposing in effect a sentence of 19 years six months imprisonment, I am allowing a discount of six months from the end sentence of 20 years imprisonment
which would otherwise be appropriate. The discount takes into account your relative
youth, your clean record, and the generally useful and positive character of your life to date, apart from this offending, In that regard I take into account the letters of support which have been furnished to the Court by your counsel. I must say however, that in cases of the present type, discounts for personal factors are relatively rare. An allowance of six months is all that it would be proper to allow.
Minimum term of imprisonment
[84] The Court is empowered to impose a minimum period of imprisonment of up to 10 years where release after serving one-third of the sentence imposed would represent insufficient denunciation, punishment and deterrence.[14] The Crown submits also that in this case there is a need to protect the community from someone who is capable of such a wide range of offending as has occurred here.[15]
[14] Section 86(4)(b) of Sentencing Act 2002.
[15] See generally s 86(2).
[85] The Courts have routinely imposed minimum non-parole periods in cases like the present, which have attracted long finite sentences. Examples of cases in which minimum non-parole periods of ten years have been imposed recently are R v I[16] and R v T.[17] The Crown submits that this is plainly a case in which a minimum period of imprisonment if called for. On your behalf Mr Saseve quite properly accepts that to
be so.
[16] R v I CA70/08 25 February 2009.
[17] R v T CA67/06 2 May 2007.
[86] While there is much to be said for the Crown’s submission that the minimum period of imprisonment must be the full ten year period allowed by law, I propose to impose a minimum period of nine years six months. The discount represents a degree of recognition of the mitigating factors I have discussed earlier and recognises also the point made by Mr Saseve to the effect that the Court should, where possible, avoid an effective sentence that is simply crushing, especially in the case of a relatively young offender.
[87] But, as the Court of Appeal observed in R v I there is little point in imposing minimum periods representing much less than 50% of the nominal sentence.
Sentence
[88] Mr S, as I indicated to you earlier on, the effective sentence of the Court will be 19 years six months imprisonment with a minimum period of imprisonment of nine years six months, but I must now impose separate sentences on each of the counts upon which you were found guilty. By reason of the totality discount, the sentences actually imposed will in some cases be significantly less than those earlier discussed.
[89] On counts 2, 3, 6, 7, 11, 12 and 15, involving sexual violation of P by unlawful sexual connection, you are sentenced to 17 years six months imprisonment.
[90] On count 4, involving sexual conduct with P when under 12 years of age, you are sentenced to four years imprisonment.
[91] On counts 8, 9 and 13, involving sexual conduct with P when he was under the age of 16 years, you are sentenced in each case to three years imprisonment.
[92] On count 16, involving the assault on P with a pair of pliers you are sentenced to two years imprisonment.
[93] On count 1, of causing grievous bodily harm with intent to cause grievous bodily harm (the hiding incident) you are sentenced to four years imprisonment.
[94] On counts 20 and 21 of sexual violation of V by rape, you are sentenced to seven years imprisonment.
[95] All of the sentences imposed on each of these counts are to be served concurrently.
[96] On count 18 of wounding with intent to cause grievous bodily harm you are sentenced to two years imprisonment.
[97] On count 19 of wounding with reckless disregard you are sentenced to
12 months imprisonment and on count 17, of attempting to pervert the course of justice, you are sentenced to six months imprisonment.
[98] Each of these three sentences, namely on counts 17, 18 and 19, are to be served concurrently among themselves, but the sentence of two years imprisonment on count 18 is to be cumulative upon the sentence of 17 years six months imposed on count 2. The result is an end sentence of 19 years six months imprisonment.
[99] I impose a minimum period of imprisonment of nine years six months, in respect of the counts of sexual violation by unlawful sexual connection; namely counts 2, 3, 6, 7, 11, 12, and 15.
C J Allan J
2009; R v Thomas HC Wellington CRI-2007-091-715, 22 August 2006; R v Konui [2008] NZCA
401; R v Mohammed [2007] NZCA 170.
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