R v Takiari

[2007] NZCA 273

NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA119/07 [2007] NZCA 273

THE QUEEN

v

TONY WARU TAKIARI

Hearing:         26 June 2007

Court:            Ellen France, Rodney Hansen and Ronald Young JJ Counsel: A Markham for Crown

P H Surridge for Respondent

Judgment:      2 July 2007         at 3 pm

JUDGMENT OF THE COURT

AThe Solicitor-General’s application for leave to appeal against sentence is granted and the appeal against sentence is allowed.

BThe sentence of three and a half years imprisonment on the count of sexual violation by rape is quashed.

CA new sentence of five and a half years imprisonment is substituted, such sentence to be concurrent with the sentences imposed on the two counts of sexual violation by unlawful sexual connection and the one count of

indecent assault.

R V TAKIARI CA CA119/07  2 July 2007

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]      The respondent pleaded guilty to two charges of sexual violation, one of sexual  violation  by  rape  and  one  of  indecent  assault.    He  was  sentenced  on

13 March 2007   to   a   term   of   three   and   a   half   years   imprisonment.      The Solicitor-General seeks leave to appeal this sentence on the basis that it is manifestly inadequate.

Factual background

[2]      The charges relate to one incident which took place in the early evening of

10 July 2006.   The 19 year old complainant got off the train and began to walk home.  The respondent, who was then aged 17 years and 10 months, followed her. Near to an abandoned school premises he grabbed the complainant from behind and directed her into the school grounds.

[3]      The respondent tried unsuccessfully to get into some of the school buildings. He kissed the complainant and then told her to lie down on a concrete path in the grounds.  He lay on top of her, forced her legs apart and then began to remove her lower body clothing.  The respondent kissed the complainant on the genital area over her underwear and then directed her to remove her underwear.

[4]      When her underwear was removed, the respondent performed oral sex on her. He fondled her breasts and then raped her.  The respondent rubbed his penis between her buttocks and forced her to perform oral sex on him until he ejaculated.   The respondent then directed the complainant to get dressed, told her to go home and not to tell anyone.

Sentencing remarks

[5]     The sentencing Judge, Judge B Davidson, after setting out the factual background, discussed the impact on the victim of the offending.   In terms of the respondent’s personal circumstances, the Judge noted his age at the time of the offending and that the respondent was now 18.  The Judge said that the respondent had come to Wellington to undertake a forestry training course that he eventually completed.  The Judge at [8] saw that as having some significance because it showed that when in a “supervised environment” the respondent could do “quite well” for himself.  The Judge referred to the absence of any criminal history but also noted information   suggesting   a   pattern   of   anti-social   behaviour   throughout   the respondent’s teenage years.

[6]      Judge Davidson then discussed the respondent’s shame and remorse and a psychological report that indicated a significant risk of re-offending in respect of sexual offences.

[7]      The Judge at [12] treated as aggravating features the degree of restraint and coercion used in “manhandling” the complainant onto the school grounds.   In addition, he said that the incident was sustained with various indecencies and had a very significant effect on the victim.  The Judge saw her as being vulnerable at the time - walking alone with nightfall approaching.   Although the offending was “somewhat opportunistic”, the Judge also saw it as having some “predatory aspect” because once the respondent saw the complainant he followed and manhandled her into the school grounds (at [13]).

[8]      The mitigating features identified were as follows: (a) guilty pleas;

(b)      youth and immaturity; (c)         apology; and

(d)      shame and remorse.

[9]      The Judge’s approach to sentencing is encapsulated in the following remarks:

[19]      For an adult offender, after a defended trial, I have no doubt that an appropriate starting point would be imprisonment of around 10 years. However you are not an adult and you did not contest the charges.   You pleaded guilty.  You must be given credit for your pleas of guilty and for your youth.   You must also be given credit for the remorse that you have shown.

[20]      I must also be conscious of ensuring that the less restrictive outcome is imposed upon you as is reasonable in the circumstances and I must ensure that the end sentence is not one which is crushing to you as an 18 year old.

[21]     Giving you credit for all of the mitigating features, in my view the appropriate end sentence is imprisonment for 3½ years.

Submissions on appeal

[10]     The appellant makes two principal submissions.   First,  if  the  Judge  was suggesting that a lesser starting point could be adopted because of the respondent’s youth and guilty plea before further consideration of the mitigating features, the Judge erred in principle.

[11]     Second, if that is not what the Judge intended to convey, then the Crown says that the discount of 65 percent for the mitigating factors was not open in the circumstances.

[12]     Under either route, the Crown submits, the resultant sentence is manifestly inadequate.

[13]     The respondent’s submission is that the sentence imposed, although it may seem lenient, was within the available range.  The respondent accepts that a starting point of nine to ten years imprisonment was appropriate but says that the final sentence was available when the various mitigating factors are taken into account.

[14]     The respondent emphasises in this context:  the prompt admission and plea;

the lack of previous history and conviction; youth, and the prospect of rehabilitation;

the  opportunistic  nature  of  the  offending;  remorse,  apology  and  the  offer  of restorative justice; and the additional prejudicial effect of imprisonment on youth.

Discussion

[15]     The approach to sentencing in a case such as this was described by this Court in R v Tawha CA396/02 26 February 2003 at [16] in these terms:

A careful reading of R v A ([1994] 2 NZLR 129 (CA)) reveals that the Court was referring to the ultimate sentences imposed, not a starting point, when referring (p132) to cases justifying going below, even well below, the eight year starting point. Seeking to fix a different starting point having regard to some of the circumstances of particular offending tends to make that term meaningless and to detract from efforts to attain consistency in sentencing. The starting point is the sentence level appropriate for the nature of the offence before aggravating and mitigating circumstances are considered, not after such circumstances are considered.

[16]     In that context, at [17] the Court was critical of the judgment in McKerrow v Police HC CHCH A74/02 13 August 2002 John Hansen J where it was suggested that there are cases (in that case involving youth, early guilty plea and other circumstances) where it was appropriate to take a lower starting point than the eight years referred to in R v A.

[17]     It is not entirely clear whether the Judge in this case has applied the approach criticised in Tawha.   However, we do not need to resolve this point because it is plain that the sentence imposed is manifestly inadequate.  This offending had some significant  aggravating  features.     It  involved  a  level  of  predatory  behaviour, abduction and two incidents of oral sex as well as rape of a victim who had a level of disability (she is visually impaired).   This combination of aggravating features at least had to warrant the starting point of ten years imprisonment identified by the sentencing Judge.

[18]     From that starting point, a discount was appropriate for the  respondent’s guilty pleas which were not late but not made at the first reasonable opportunity.  A further discount was appropriate for the respondent’s youth, his apology and associated remorse.

[19]     As to the appropriate discount for the respondent’s youth, we accept the Crown’s submission that there were factors moderating that discount.  In particular, the respondent was nearly 18 at the time and was both “streetwise” and sexually experienced.   On a proper approach, the maximum total discount available was

45 percent.  Applying the principles applicable to a Solicitor-General’s appeal whilst still marking the seriousness of the offending, that leads to a term of five and a half years imprisonment.

[20]     For  these  reasons, the  Solicitor-General’s  application  for  leave  to  appeal against sentence is allowed and the appeal against sentence is allowed.  The sentence of three and a half years imprisonment on the count of sexual violation by rape is quashed.  A new sentence of five and a half years imprisonment is substituted, such sentence to be concurrent with the sentences imposed on the two counts of sexual violation by unlawful sexual connection and the one count of indecent assault.

Solicitors:

Crown Law Office, Wellington

Surridge & Co, Porirua for Respondent