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…

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 Tamati

Details

AGLC: R v Tamati [2021] NZHC 2885
Case: [2021] NZHC 2885
Decision Date: 28 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Tristan Tamati was sentenced by Justice Simon France for multiple serious sexual offenses against a minor and other charges. Tamati was found guilty by a jury of two counts of sexual violation by rape, two counts of sexual violation by unlawful sexual connection, one charge of doing an indecent act with a young person, and one charge of supplying methamphetamine. The case was transferred to the High Court to consider a sentence of preventive detention due to Tamati’s past offenses and high risk of reoffending. The court was required to determine the appropriate finite sentence and assess whether preventive detention was necessary to protect the community.

Justice France began by identifying a finite sentence, agreeing with the Crown's submission of 15 years, adjusted to 12 years and nine months, reflecting the severity of the offenses and their impact on the victim. The court then considered whether preventive detention was warranted. Reports from health professionals indicated that Tamati had a chronic propensity for coercive and sadistic sexual violence, with a concerningly elevated risk of reoffending. Tamati had denied his current offenses and past convictions, showing no inclination to engage in treatment. The court found that a finite sentence and an Extended Supervision Order would not sufficiently protect the community, leading to the conclusion that preventive detention was necessary. The final sentence imposed was preventive detention for the two counts of sexual violation by rape, 12 years and nine months for the unlawful sexual connection charges, and one year for the remaining charges, all to run concurrently. Tamati was also required to be entered on the Child Sex Offender Register.

The court's reasoning and outcome emphasized the necessity of protecting the community from Tamati's persistent risk of serious sexual offenses, leading to the imposition of preventive detention as the appropriate sentence.

Orders