R v Taakimoeaka

[2014] NZHC 1654

NOTE:  PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S

203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2013-006-000322 [2014] NZHC 1654

THE QUEEN

v

PENISIMANI TAAKIMOEAKA

Counsel:

J M Webber for Crown

R A Harrison for Prisoner

Sentence:

18 July 2014

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Taakimoeaka, you appear for sentence in relation to five charges:

(1)       Three charges of indecent assault.1    The maximum penalty for these

offences is seven years’ imprisonment;

(2)       Assault  with  intent  to  commit  sexual  violation  by  rape.2   The

maximum penalty is 10 years’ imprisonment;  and

(3)       Sexual  violation  by  unlawful  sexual  connection.3     The  maximum

penalty is 20 years’ imprisonment.

1      Crimes Act 1961, s 135.

2      Section 129.

3      Section 128B.

R v TAAKIMOEAKA [2014] NZHC 1654 [18 July 2014]

[2]      You were found guilty of these charges by a jury in the Blenheim District Court.   The District Court Judge has transferred your case to this Court so that a sentence of preventive detention can be considered.

[3]      I  have  carefully  considered  a  sentence  of  preventive  detention.    I  have, however, concluded that a long finite sentence with a minimum period of imprisonment is the appropriate sentence for you.  I will therefore not be sentencing you to preventive detention.

[4]      In sentencing you, I shall explain: (1)   your offending;

(2)       your previous convictions;

(3)       the starting point I have adopted;

(4)the adjustments I have made to the starting point to reflect the totality of your offending and your previous convictions;

(5)       your personal circumstances;

(6)       why I am not imposing a sentence of preventive detention;

(7)       the minimum period of imprisonment that you must serve;  and

(8)       your final sentence.

Your offending

[5]      In March last year you entered a home in Picton at 3.30 am by climbing through a window.  Two 16 year old girls were asleep in one of the bedrooms of the house.  You took one of those girls into a spare room and placed her on a bed and inserted your finger into her vagina.  You took her into that room for the purposes of raping her.  She managed to escape back to the bedroom which she shared with the

second victim.  You followed her back into that room where you groped the thigh of the second victim.  You only stopped your offending when a male occupant of the house came into the room in response to the girls’ screams.

[6]      I have read the victim impact statements written by the young women who you attacked.  It is clear they have been emotionally devastated by your offending.

Your previous relevant convictions

[7]      One night in March 2005 you engaged in serious sexual offending, which resulted in you being convicted of sexual violation by unlawful sexual connection, rape and attempted sexual violation by unlawful sexual connection.  Your victim on that occasion was also a vulnerable 16 year old girl.  You broke into the home where she  was  living  and  committed  the  offences  I  have  just  described.    You  were sentenced to six and a half years’ imprisonment.

Starting point

[8]      I am treating the charge of assault with intent to commit sexual violation as the lead offence for the purposes of sentencing you today.  I have treated that case as being the most serious because you took a 16 year old girl from her bed into another room intending to rape her.   That charge carries a maximum penalty of 10 years’ imprisonment.

[9]      In my assessment, your offending in relation to this charge warrants a starting point of five and a half years’ imprisonment.   I have reached this conclusion after considering similar cases4 and after evaluating the gravity of your offending.

Adjustments to reflect the totality of your offending

[10]     Section 85 of the Sentencing Act 2002 requires me to have regard to the totality of your offending.

4      R v Hassan [1999] 1 NZLR 14 (CA); Ross v R [2013] NZCA 263; R v Owen [2012] NZHC 499 and R v Leonard [2013] NZHC 460.

[11]     The charge of sexual violation would in itself attract a starting point of five and a half years’ imprisonment.  I have reached this conclusion because I assess your offending as being in the upper range of band one and the lower end of band two of the Court of Appeal guideline judgment in R v AM.5   This assessment is based on the presence of two aggravating factors, namely the unlawful entry into the victims’ home and the vulnerability of the victims.

[12]     The charges of indecent assault are in themselves not serious instances of indecent assault and would normally attract a sentence of no more than 12 months’ imprisonment.

[13]     In my assessment, the starting point of five and a half years’ imprisonment needs to be adjusted upwards by a further one year imprisonment to reflect the totality of your offending on the night in question.

Adjustments to reflect your previous convictions

[14]     Section 9(1)(j) of the Sentencing Act 2002 requires me to take into account the number, seriousness, date, relevance and nature of your previous convictions.

[15]     I have previously described your earlier relevant offending.  You have now established a disturbing propensity to sexually abuse vulnerable teenage girls in their homes at night.

[16]     While I must resist punishing you again for your previous offending, the seriousness and relevance of your 2005 offending leaves me with no option other than to increase the starting point of the sentence I am going to impose today to reflect your previous offending.   That increase shall be another one year imprisonment.

[17]     This produces a starting point of seven and a half years’ imprisonment.

Personal factors

[18]     I have assessed whether or not there are any factors that could allow me to reduce the provisional sentence of seven and a half years’ imprisonment which I have reached.

[19]     I note that you are 26 years old and that you have a partner who has born you two children.  I also note that your offending appears to be driven by your inflated sense of self-entitlement after you have been drinking heavily and that you have little insight into the nature of your offending.  You require intensive treatment and the benefits of rehabilitation programmes.

[20]     I can find nothing in your circumstances which would allow me to reduce the provisional sentence of seven and a half years’ imprisonment that I have reached.

Reasons why I am not imposing preventive detention

[21]     You have come perilously close to being sentenced to preventive detention because of:

(1)       the emerging pattern of your serious offending;

(2)the  seriousness  of  the  harm  to  the  community  caused  by  your offending;

(3)       the possibility of you committing serious offences in the future;  and

(4)the absence of efforts on your part to date to address the causes of your offending.6

[22]     I   was   particularly   concerned   by   the   assessment   of   Mr   Carlyon,   a psychologist, who believes there is a medium to high risk of you committing serious sexual offences in the future.

[23]     I  have,  however,  concluded  preventive  detention  should  not  be  imposed because of your age, and the principle that a lengthy determinate sentence is preferable if it provides adequate protection to society.7    I am taking into account your age because some young people have a greater capacity for rehabilitation.8    I am  satisfied  a  lengthy  determinate  sentence  will  adequately  protect  society,

particularly if you respond positively to treatment and counselling while you are in prison.

Minimum period of imprisonment

[24]    In your case I believe it is necessary to impose a minimum period of imprisonment in order to:

(1)hold you accountable for the harm you did to your victims and to the community;

(2)       denounce your conduct;

(3)       deter others committing similar offences;  and

(4)       protect the community from you.9

[25]     The minimum period of imprisonment you must serve is four years.  I believe that is the least restrictive sentence that I can impose in your case.

Conclusion

[26]     Mr Taakimoeaka, can you please stand.

[27]     I am sentencing you to seven and a half years’ imprisonment in relation to the

charge of assault with intent to commit sexual violation by rape.  You must serve a minimum period of imprisonment of four years in relation to that offence.

7      Section 27(4)(e).

8      Churchward v R [2011] NZCA 531 at [77].

9      Sentencing Act 2002, s 86(2).

[28]     I am sentencing you to five and a half years’ imprisonment on the charge of sexual violation by unlawful sexual connection and 12 months’ imprisonment on the charges of indecent assault.

[29]     All sentences are to be served concurrently.  This means the times you will be serving in prison for all your offences will run together.

[30]     I  am  cancelling  your  sentence  of  community  work  and  remitting  the outstanding fines.

D B Collins J

Solicitors:

Crown Solicitor, Nelson