R v Taurae

[2017] NZHC 2756

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-4791 [2017] NZHC 2756

THE QUEEN

v

DANNY TAURAE

Hearing:	10 November 2017
Appearances:	F Culliney for the Crown JW Clearwater for the Defendant
Sentence:	10 November 2017

SENTENCING NOTES OF TOOGOOD J

R v Taurae [2017] NZHC 2756 [10 November 2017]

[1]      Danny Taurae, you appear for sentence having been found guilty by a jury of one representative charge of common assault1 against a 53-year-old man who shared a cell with you in Mt Eden Correctional Facility in September 2015.  Along with the common assault charge you were also charged with sexual offending against the victim.  The jury acquitted you of those charges and I put them to one side.  I respect the jury’s verdicts which were reached, I suspect, because they were not satisfied beyond reasonable doubt that the victim had communicated clearly to you that his prior consent to sexual conduct with you no longer applied.   I make it clear that I sentence you only for the assaults.

[2]      The  offending  arose  out  of  what  was  for  a  time  a  consensual  sexual relationship, but that clearly became abusive.  You assaulted the victim many times over a period of less than three weeks, causing substantial bruising.

Sentencing purposes and principles

[3]      In sentencing you, I am required to have regard to relevant purposes and principles set out in the legislation, including the need to hold you accountable for your offending; denouncing your conduct; deterring you and others from this kind of offending; and the desirability of assisting in your rehabilitation and reintegration into the community.  I must also take into account the gravity of the offending, the effect on the victim, and maintaining consistency with sentences imposed on similar offenders committing similar offences in similar circumstances.

[4]      Deciding the appropriate sentence requires me to look first at what features of this offending make it more or less serious than other cases of its kind in order to reach a starting point that reflects the overall seriousness of the offending.  Then I will take into account personal factors which may require the sentence to be increased or reduced from that starting point.2  That will result in the appropriate end sentence and give effect to the purposes and principles of sentencing I have mentioned.

[5]      The Crown submits that this offending falls into the most serious category of common assault and that the appropriate starting point is 12 months’ imprisonment. The Crown’s position is that any personal mitigating factors are counter-balanced by the uplift necessary to recognise your previous violent offending.  It is acknowledged that you are presently serving sentences of imprisonment but the Crown submits that the sentence to be imposed today should be served in addition to your current sentence to act as an effective deterrence to offending while in prison.

[6]      Mr Clearwater’s submissions focus on your troubled adolescence and early adulthood, noting that you have been in the youth justice system for a considerable length of time. Mr Clearwater has explained to me, however, his observation that you have changed to a degree since the jury’s verdict, and in particular he says that now that you are in a prison environment where you are occupied fully during the day and working you are more content and you appear, at least on Mr Clearwater’s account, to be doing well.

Setting the starting point

[7]     These were serious assaults, occurring on several occasions during the approximately 16-day period you and the victim shared a cell.   The violence you inflicted resulted in extensive bruising to the victim’s body, arms and legs.   You claimed at trial that the bruising was caused accidentally during consensual sparring sessions in your cell when you were teaching the victim to box.  The jury rightly rejected that evidence; it is clear that you used violence and the threat of violence to dominate and bully the victim.  There was at least one incident where the victim was punched in the head after performing oral sex on you.  Attacks to the head can have serious consequences and are recognised as an aggravating factor.  The repetition of the violence as opposed to an isolated one-off assault increases the seriousness of the offending.

[8]      In my view the victim was particularly vulnerable in two respects:

(a)      First, he has been on the Asperger’s spectrum since birth.   He also suffers from a neurological defect, caused by a lesion on the temporal lobe, that renders him extremely weak and poorly coordinated.  That was obvious to anybody who saw him entering and leaving the courtroom. You may not have known about the Asperger’s but I do not doubt that you were aware he was far less able to defend himself or seek assistance than other inmates.

(b)Second, the offending occurred in prison while the victim and you were in custody sharing a cell.  That meant that the victim was confined to be with you between 4 pm and 9 am every day.  He had no place of relative safety to retreat to, and the confinement increased the possibility of retribution for complaining to the authorities.

[9]      Offending within the prison environment warrants a higher starting point, in any event, even for isolated incidents between inmates that would not escalate or generally threaten prison safety,3 because those in the custody of the state are entitled to protection.  The frequency of violence in prison does not reduce its seriousness.4

While I must be careful not to double-count the element of prison offending, it is a significant and serious aggravating aspect of the case.

[10]     It also took the victim some time to recover physically from the injuries that you inflicted.  Fortunately, he does not suffer from any ongoing physical problems. But the emotional and psychological harm has been long-lasting. He has received and continues to receive counselling to combat the fear and distress the assaults have imprinted in his mind.  The victim feels that these assaults were part of a cycle of bullying you used to force him to submit to your various demands. The offending has made it difficult for the victim to trust anyone he meets.  He is still within the prison system and is fearful of encountering you again.

[11]     Overall, a common assault featuring several and severe aggravating factors needs to be treated seriously. You are fortunate not to have faced a more serious charge

on these facts.  I am satisfied that this falls at the very upper end of the seriousness of offending of its kind.  Collectively, the aggravating features I have mentioned satisfy me that a starting point of 12 months’ imprisonment is appropriate.

Personal factors

[12]     You are a 20-year-old male of Cook Island Maori descent.  You are presently serving a sentence of three years and six months’ imprisonment for unlawful sexual connection with a female aged 12 to 16, concurrent with one year imprisonment for an indecent assault and several concurrent four-month sentences for burglary and assaults and threats with weapons in 2014.  The pre-sentence report writer notes that your current sentences will end on 23 June 2018. Because the 12-month starting point I have taken is the maximum penalty for the offence of common assault, I do not propose to impose an uplift to reflect the need for extra deterrence because of your history of violent and other offending.  I would otherwise have added one month to your sentence on that account.

[13]     You do not believe that your whanau or support systems have any relevance to your offending and you asked the report writer not to discuss your life.  This demonstrates that you still do not have much insight into the links between your offending, your past, your upbringing, your lifestyle and your attitudes. You have not yet attended any programmes to attempt to address  your offending both on this occasion and previously.

[14]     Unless your personal circumstances make it inappropriate, I must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed.   I am not required in imposing a maximum penalty to regard this as the most serious case it is possible to imagine.5

[15]     I consider this offending to be characterised properly as among the most serious of its kind, reflecting the number and severity of the aggravating features contributing to the starting point. While it is not the most serious record nor the most

serious  type  of  violent  offending  seen  by  this  Court,  your  history  represents  a

5      Sentencing Act, s 8(c); R v Xie [2007] 2 NZLR 240 (CA) at [26].

concerning pattern.  You need to understand that you could be on the start of a long slippery slope,  Mr Taurae,  unless  you  make  use of the  options  for  support  and rehabilitation available to you.

Youth

[16]     I am required to give proper weight to your relative youth which is a mitigating factor relevant to sentencing.6  In particular, I consider that notwithstanding your lack of insight you are likely to have greater capacity for rehabilitation, and that may have been demonstrated since the trial.

[17]     The pre-sentence report offers little guidance about that and it appeared that you have continued to maintain your innocence on the charge of assault. You need to get over that. You need to accept the fact that what you did was outrageous, Mr Taurae, and once you accept that then you will have the prospect for rehabilitation. The Court of Appeal has observed that with young offenders there is often hope that maturity will be accompanied by insight and a reduction in risk to the community,7  and I am prepared to offer you a discount on the basis of that prospect.  I therefore will allow a discount of two months for your youth and the prospects of rehabilitation, resulting in an end sentence of ten months’ imprisonment.

Parole considerations

[18]     I have considered the parole implications of the imposition of a cumulative sentence of ten months’ imprisonment on you, and I am satisfied that they do not result

in any unfairness to you.8

6      Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77], Pouwhare v R [2010] NZCA

268, (2010) 24 CRNZ 868 at [69].

7      R v Chankau [2007] NZCA 587 at [26].

8      Parole Act 2002, ss 20(1), 75(1)(a), 75(1)(b) and 84(5)(a).

Sentence

[19]     Would you please stand, Mr Taurae.

[20]     I sentence you to ten months’ imprisonment, to be served cumulatively upon the sentences you are currently serving.

[21]     Please stand down.

........................................

Toogood J