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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Takiari

Details

AGLC: R v Takiari [2007] NZCA 273
Case: [2007] NZCA 273
Decision Date: 2 July 2007

CaseChat Overview and Summary

The case of R v Takiari involved the respondent, Tony Waru Takiari, who pleaded guilty to two charges of sexual violation, one of rape and one of indecent assault. The case was heard in the Court of Appeal of New Zealand. The primary issue before the court was whether the sentence of three and a half years imprisonment imposed on the count of sexual violation by rape was manifestly inadequate. The court was required to determine if the sentence appropriately reflected the severity of the offences and the mitigating factors considered.

The court found that the sentence was indeed manifestly inadequate. It noted that the offences had significant aggravating features, including predatory behaviour, abduction, and the victim's disability. The court agreed with the Crown's submission that a starting point of ten years imprisonment was appropriate for such offences. The court also acknowledged the mitigating factors, such as the respondent's guilty pleas, youth, apology, and remorse, but determined that a maximum discount of 45% was appropriate given the mitigating circumstances. Applying these principles led the court to a sentence of five and a half years imprisonment, concurrent with the sentences for the other charges.

Ultimately, the court allowed the Solicitor-General's application for leave to appeal against the sentence and substituted a new sentence of five and a half years imprisonment on the count of sexual violation by rape.

Orders