R v Tamati

[2021] NZHC 2885

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-018-214

[2021] NZHC 2885

THE QUEEN

v

TRISTAN TAMATI

Hearing:	28 October 2021
Counsel:	D R La Hood and A F Oliver for Crown D J Taffs for Mr Tamati
Sentence:	28 October 2021

SENTENCING NOTES OF SIMON FRANCE J

[1]                 Mr Tamati appears for sentence having been found guilty by a District Court jury of:

(a)sexual violation by rape (two counts);

R v TAMATI [2021] NZHC 2885 [28 October 2021]

(b)sexual violation by unlawful sexual connection (two counts being forced anal and oral penetration);

(c)one charge of doing an indecent act with a young person; and

(d)one charge of supplying methamphetamine.

[2]                 The matter was transferred to the High Court for consideration of the sentence of preventive detention.1

[3]                 The process to be followed is for the Court to identify what finite sentence would be imposed. This provides a focus for assessing the need for the indefinite sentence of preventive detention, bearing in mind the finite sentence can be extended by an Extended Supervision Order.

Facts

[4]                 The victim, whose statement has today been read, was 15 years old at the time. She was known to Mr Tamati through her mother. They were at an address along with others, Mr Tamati having picked up the victim and some of her friends to go there. The victim consumed alcohol and methamphetamine.

[5]                 Mr Tamati does tattoos and on this evening was doing so as requested. He ended up tattooing the victim, at the end of which he pulled her onto his knee and held her there. He tried to kiss her but she pulled away.

[6]                 The victim’s next memory is lying on her back in the back seat of a vehicle parked in the driveway. She was naked. Mr Tamati was there and he raped her, and violated her anally. The victim, whose memory is not complete due to her drugged state, next recalls sitting facing Mr Tamati. He forced oral sex by her.

1      Mr Tamati is over 18 years of age and these convicted offences are qualifying offences. Two reports have been received which note an above average risk of reoffending.

[7]                 The victim next remembers being in a bedroom, on a bed with a friend sleeping next to her. When she next awoke, however, she was on a couch with Mr Tamati lying behind her. He again raped her.

Victim impact statement

[8]                 The Court has today heard on behalf of a traumatised but very brave victim who has suffered a great deal as a consequence. She has been diagnosed with post traumatic stress disorder, depression and other mental health and emotional impacts. In the first period following these events the victim could not cope, tried to self- medicate with drugs, self-harmed and left school. She was hospitalised in a youth psychiatric unit and her life since has consisted of trying to cope with what has happened to her. The consequences are ongoing and still very strong but there is also a growing resilience that is great to see and we can only all hope for her continued recovery.

[9]                 It has been a devastating reminder to those present of the terrible impact of this sort of offending. Unfortunately, and troublingly, it is lost on Mr Tamati who continues to deny his guilt, has changed his defence to the charges, denies past offences he has pleaded guilty to, and shows no understanding or empathy. I say to the victim who is listening in remotely, though, that what matters is yourself and those supporting you and what they say.

Past offending

[10]              The matter was referred to the High Court not only because of the current offending but because of what Mr Tamati has done in the past. Now 45 years old, he has offended since a young age. Most relevant though is an horrific incident in 1997 for which he was sentenced to 15 years’ imprisonment.

[11]              Mr Tamati broke into the home of an elderly woman and subjected her to the same types of violations present in the current offending. At the time he was warned that preventive detention was the likely sentence should he reoffend in a similar way.

[12]              Mr Tamati was required to serve the whole of his sentence, an order having been sought because of concerns over his risk.

[13]              Upon release he breached release conditions and was imprisoned for these and then in 2017 was sentenced for male assaults female and supplying drugs. Those offences were the agreed outcome of a more serious package of allegations which could not be pursued when the young complainant collapsed in the witness box and could not give her evidence. These therefore remain allegations and not to be weighed in the mix. Their presence or absence is an irrelevance to today’s outcome.

[14]              The present offending  occurred  at  the  end  of  2017,  so  not  long  after  Mr Tamati’s release on the shorter sentence for the amended charges.

Background on offender

[15]              Mr Tamati was brought up by his mother and stepfather. He has a sister and a brother with whom he grew up, and has a partner. Particularly between his mother and partner there is solid support for him.

[16]              There have been various reports on Mr Tamati over the years. On this occasion, however, he refused to speak to the health professionals appointed to complete the reports. He did talk to the probation officer and the Court has now received a s 27 report which draws heavily on what Mr Tamati has said to the writers. Across these documents there are obvious inconsistencies in some of his statements but it is not necessary to delve into that.

[17]              Mr Tamati’s parents were supportive and his young family life seems positive. However, at some point he learned his natural father had committed sexual offences against an extended family member and this seems to have affected him. His conduct at school deteriorated, he was taking drugs and alcohol and eventually went to youth justice institutions where he says he suffered abuse, and which have had a significant negative impact on him. He formally left school at the age of 16, but the preceding two years seem to have been a problem time with many suspensions. He has not had stable employment but considers himself an experienced tattoo artist.

Finite sentence

[18]The first step in today’s process, as I noted, is to identify a finite sentence.

[19]              Counsel are agreed on a 15-year outcome, being 12 years for the offending and a three-year uplift for past offending and public safety considerations. While accepting the outcome I would structure it as 13 years and 2. The 13 years reflect:

(a)the number of violations;

(b)the vulnerable state of the victim, not only in terms of her age but also her affected consciousness; and

(c)the prolonged duration of the incident, all of which are reflected in the consequences for the victim whose teen years have been lost to this event.

[20]              When the Crown submitted 15years, the s 27 report was not to hand. In my view, it merits recognition. I would allow around 15 per cent meaning a finite sentence of 12 years and nine months.

[21]              A minimum non-parole would be required. One-third would not adequately reflect the nature of this offending. Further, there is a clear need for personal deterrence and protection of the community. It is a sentence that would be imposed as an alternative to the real risk of preventive detention and the maximum non-parole period would be needed. It would be eight years and six months.

Preventive detention

[22]              I turn then to whether preventive detention should be imposed instead. On behalf of Mr Tamati, Mr Taffs recognises the potential for a sentence of preventive detention, but emphasises that Mr Tamati has engaged with the s 27 report writer. This should be seen as a sign that rehabilitation may be more of an option than it might initially have appeared.

[23]              Reports have been received from two health professionals. Dr Hansby, a psychiatrist, notes a chronic propensity for coercive and seemingly sadistic sexual violence. The duration of the incident is noted, as is the fact that his propensity has persisted, despite Mr Tamati getting older. As matters currently stand, Mr Tamati has a concerningly elevated risk of sexual violence.

[24]              Mr Paramo, a clinical psychologist, also notes the persistence of Mr Tamati’s propensity. Of significance to both assessors was that a range of interventions were undertaken during the first long prison sentence. They have obviously been unsuccessful.

[25]              Both professionals assessed Mr Tamati against the various risk assessment tools. It must be noted that these were paper exercises since Mr Tamati refused to participate. These analyses show Mr Tamati is a high risk (which is my term) of reoffending.2 I consider his record makes it obvious that the risk includes qualifying sexual offences.

[26]There are five factors a Court must consider:

(a)any pattern of serious offending disclosed by the criminal history;

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

(c)information indicating a tendency to commit serious offences in the future;

(d)the efforts by an offender to address the causes; and

(e)the principle that a lengthy determinate sentence is the preferable outcome.

[27]These have largely been addressed but by way of summary.

2      The respective labels in the reports were “above average” and “well above average” for further sexual offending.

[28]              Mr Tamati has now twice carried out sexual assaults of the most serious kind on women at opposite ends of the age spectrum. The consequences have been devastating and the reports indicate his risk persists and is not diminishing. As for the prospects of change, not only have there been past attempts but Mr Tamati presently shows no inclination to engage in any treatment. He denies this offending; he denies past offending even though he pleaded guilty. Those who support him appear to share a belief in his innocence. As matters stand, the prospects for any change are non- existent. I do not accept Mr Tamati’s selective engagement with report writers indicates any likely change to engagement with sexual offending treatment courses, especially when he continues to deny his offending and now on a different basis from that taken at trial.

[29]              As for the sufficiency of a finite sentence, plus an Extended Supervision Order, Mr Tamati has previously breached conditions. This offending occurred within a relatively short time frame from release on the long sentence for similar offending, and an actually short time from release on a more recent prison sentence. Of his attitude the probation officer noted:

he presented as a very opinionated individual, explaining if he feels right about something he does not back down or change his mind.  It is assessed that   Mr Tamati has a high sense of self-entitlement, portraying himself in a positive light.

[30]              I do not consider an ESO would offer the necessary community protection. If he is to be released at some time in the future, I consider the ability to immediately recall is a necessary tool for the authorities. I do not see preventive detention as in any sense being an incentive for Mr Tamati to address his issues. I consider he will do what he wants when he decides to. Rather, it is one of those occasions when protection of the public demands the sentence of preventive detention and that will be the outcome.

Sentence

[31]Stand, Mr Tamati, please.

(a)On the two offences of sexual violation by rape I sentence you to preventive detention with a minimum period of imprisonment of eight years and six months;

(b)On the two charges of unlawful sexual connection I sentence you to 12 years and nine months; and

(c)On the remaining charges to a sentence of one year.

All sentences are concurrent.

[32]Mr Tamati is to be entered on the Child Sex Offender Register.

[33]I understand a first strike warning was given by Judge Davidson after verdicts.

Simon France J

Solicitors:

Crown Solicitor, Wellington for Crown