R v Tawha 396/02

[2003] NZCA 346

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

396/02

THE QUEEN

v

LANCE KOTAHITANGA TAWHA

Coram:Gault P
Robertson J
Doogue J

Appearances:  T Sutcliffe for Appellant

H D M Lawry for Crown

Judgment:26 February 2003 

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]       This is an appeal against a sentence for imprisonment of 2½ years imposed in the District Court at Hamilton on 1 November 2002 for the offence of sexual violation by unlawful sexual connection.

[2]       The appellant pleaded guilty on arraignment.  The sentencing Judge accepted that, for practical purposes, this was the earliest reasonable point after it was agreed by the Crown that other charges would not proceed.

The circumstances of the offending

[3]       The circumstances of the offending were that the appellant and his co-offender were in a car outside a party in Smith Street, Huntly in the early hours of the morning of 17 November 2001.  The co-offender who was in the passenger seat called out to the complainant who had come from the party and invited her to go for a ride.  She willingly got into the back seat of the vehicle where the co-offender joined her.  The appellant drove into the countryside to Lake Waahi Reserve where he parked on the boat ramp.  The complainant, who was intoxicated and had been falling asleep during the drive, went over to a picnic table with the co-offender who there pushed her onto the table and pulled down her lower clothing.  He digitally penetrated her vagina while holding her down on the table.  He then went back to the vehicle where the appellant had remained and told him that the complainant “wanted a threesome”.  The two went back to where the complainant had attempted to pull her clothing up but the co-offender again engaged in digital penetration before inviting the appellant to do the same while he pushed his penis into the complainant’s mouth and eventually ejaculated.  The appellant realised that the victim was in no position to consent to sexual activity.  He ceased the digital penetration and resisted invitations from the co-offender to pursue any further sexual activity.  The co-offender then engaged in vaginal intercourse with the complainant, and shortly after that, pushed her over onto her front and inserted his penis into her anus.  He complained to the appellant that he needed lubrication for this act and the appellant walked back to the car and returned with a bottle of drink which he poured over the complainant’s backside to provide lubrication.  The co-offender persisted with the anal intercourse for a short period after which the complainant was taken back to Smith Street in Huntly.

[4]       The appellant accepted from the outset his role in the events and admitted that he had provided the drink as a lubricant at the co-offender’s request and that he knew the complainant was extremely drunk and tired.

[5]       The appellant is a 17 year old student with no previous convictions.  He is highly regarded as a good student and as a potential leader, a young person of considerable promise with support from his school, community leaders and family.  He is said by the probation officer responsible for the pre-sentence report to be extremely remorseful for his actions, and had it been possible, was anxious to apologise to the victim in person.

[6]       The victim impact report makes sorry reading although it must be acknowledged that the impact upon the victim must be attributed primarily to the acts of the co-offender.  In addition to the ongoing stress and psychological effects the victim has been faced with the difficulty of living in a small community where there is always the likelihood of encountering the offenders and those who have not been sympathetic towards her.

The Judge’s sentencing remarks

[7]       The sentencing Judge noted that the digital penetration of the complainant by the appellant was not part of the charge to which he had pleaded because he had desisted when he became aware that there was no consent.  What the appellant had accepted was culpability for a “moment of madness” in assisting the co-offender with anal sex by providing lubrication with soft drink.  On that basis he was to be sentenced for the offence of sexual violation by unlawful sexual connection but as a party to the act perpetrated by the co-offender.

[8]       The Judge referred to s128B(2) Crimes Act 1961 (inadvertently referred to in the sentencing notes as the Criminal Justice Act) which requires presumptively a sentence of imprisonment, which was what the pre-sentence report recommended.  The Judge then referred to the decision of this Court in R v A [1994] 2 NZLR 129 which set the sentencing level for sexual violation at eight years where the charge is contested. He noted, however, that there was room for considerable movement, often well below that level, particularly where, as often happens, young people start out with consensual or assumed consensual intimacy that degenerates into non-consensual sexual violation. The Judge accepted that in the appellant’s case there were significant mitigating features to be taken into account, and as already mentioned, he accepted that the guilty plea was entered at the earliest reasonable opportunity. He accepted that the appellant’s involvement did not extend to direct invasive activity although he did, to an extent, go along with the co-offender’s serious conduct against a vulnerable helpless intoxicated young woman which meant that the victim was subjected to two men offending against her.

[9]       The Judge accepted that it was to the appellant’s credit that he desisted from further invasive activity when it became apparent to him that there could not really be consent, although he recognised that that could not lessen the culpability of assisting the co-offender thereafter.

[10]     The Judge referred to the personal circumstances of the appellant including the favourable pre-sentence report reflecting an impressive young person who had made a disastrous mistake but was motivated to change.  He referred to the victim impact report and commented that, particularly with a young first offender of otherwise good character, the Court should always bear in mind the need to impose the least restrictive outcome in the circumstances.

[11]     Seeking guidance for the appropriate sentence, the Judge referred to a judgment of John Hansen J delivered in the High Court at Christchurch MeKerrow v Police A74/02, judgment 13 August 2002 in which, on an appeal from a sentence imposed in the District Court for sexual violation by rape, that Judge reduced a sentence of imprisonment for five years to one of two years in the case of a 17 year old who, after dancing with the young 16 year old complainant and engaging in some consensual kissing, briefly penetrated her in a toilet cubicle before she was able to escape.  The offender had pleaded guilty at an early stage.

[12]     The Judge also referred to the decision of this Court in R v Leger CA22/01, judgment 17 May 2001 and noted that this Court had rejected an over-lenient approach to sentencing of young and immature offenders for sexual violation by rape and held that a sentence of two years was too low.  The Judge noted as a major distinguishing feature in the present case that this was not a situation which started out with the complainant willingly getting into an intimate situation with the prisoner which then got out of control.  He considered that he was required to assess on the one hand less direct involvement by the offender but on the other hand a different type of offending in some ways perhaps even more degrading than in the cases referred to.

[13]     In the result the Judge took the view that a starting point of around four years was appropriate but that having regard to the guilty plea, the appellant’s remorse and his co-operation there should be a discount of between one year and a year and a half.  He imposed the sentence of imprisonment of 2½ years.

Starting points

[14]     Before we deal with the sentence under appeal we comment on the approach taken by the sentencing Judge.  After referring to the starting point suggested in the judgment of this Court in R v A, the Judge set a starting point of around four years.  It is not clear what is meant by “starting point” in that context.  It seems to have been an assessment of culpability for what the particular offender did;  that is, an appropriate sentence for the appellant’s lesser involvement compared with the co-offender.  From the starting point selected, the Judge allowed a discount for the guilty plea, remorse, co-operation and insight into the impact of the offending on the victim.

[15]     According to s9(2) Sentencing Act 2002 there is to be taken into account as a mitigating factor “that there was a limited involvement in the offence on the offender’s part”.  If that was taken into account by the sentencing Judge in arriving at his starting point, it means that mitigating factors were taken in at two different stages and the stated starting point was not that at all.

[16]     A careful reading of R v A 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.

[17]     The same comment is applicable to the judgment in McKerrow v Police (see e.g. para [60]).

The sentence in this case

[18]     In the present case the offence for which the appellant came for sentence was of sexual violation by unlawful sexual connection (non-consensual anal intercourse).  That was a serious crime.  It was part of a series of sexual violations which both co-offenders well knew by the time of the anal intercourse to be non-consensual.

[19]     There is no warrant for any different response to forced anal intercourse than for rape:  R v Castles CA105/02, judgment 23 May 2002.  Accordingly we have here an offence for which the appropriate starting point was imprisonment for eight years.  Adjustment to that is necessary to take account of aggravating and mitigating features some of which are listed in s9 of the Sentencing Act.  Of these the principal aggravating features were that the victim was young and vulnerable (perhaps helpless) and was confronted with two offenders.

[20]     On the other hand, in the case of the appellant, there were very significant factors to be taken into account by way of mitigation.  First, there is the limited role of the appellant in acceding to the co-offender’s request, particularly since, for the particular offence, it gave rise to no additional act of abuse of the victim beyond that which was being perpetrated by the co-offender.  There was the responsible refusal to engage in any intrusive assault once the appellant realised the complainant was not consenting. There was the appellant’s young age and good character, his remorse and a wish to pursue a course of restorative justice.  Those factors justified a lenient approach which the Judge clearly intended to take.

[21]     The issue on the appeal is whether the Judge arrived at a sentence that was not open to him because it is excessive.

[22]     In support of the appeal Mr Sutcliffe submitted that the sentence of 2½ years for the criminality of this appellant is too severe when compared with that imposed on Castles (CA105/02, judgment 23 May 2002) and more particularly his co-accused Burns & Others (High Court, Napier T014497, T14,2001, 24 May 2002 Gendall J).  Those young people were sentenced in respect of the offence of sexual violation by the insertion of a broomstick into the anus of a fellow school pupil.  The principal offender, Castles, pleaded guilty to the offence and an earlier attempt.  He was sentenced to imprisonment for 2½ years.  For what was a crime to some extent different from the more frequently encountered sexual offences, this Court considered a starting point of not less than seven years was appropriate.  The Court declined to interfere with the sentence imposed on the Solicitor-General’s appeal for the reasons set out in the judgment, but expressed the view that the sentence was below the range available to the Judge even as an exercise of mercy.

[23]     In the case of those convicted as parties to Castles’ offending (though they have been granted a retrial) the sentences imposed were between two and two and a half years.

[24]     Reference already has been made to McKerrow and Leger.  In each of these decisions there was reference to R v Carmichael CA52/94, judgment 23 March 1995.  The sentences imposed in those cases were lenient and cannot be said to reflect or establish a sentencing level for youthful offenders convicted of sexual violation.  Certainly they do not provide a foundation for the submission that the sentence under appeal was outside the range open to the Judge.

[25]     The offence to which the complainant was subjected and for which the appellant was sentenced would have called for a sentence above eight years for the principal offender after a defended trial.  That is without taking account of the prior offending by the co-offender.  The age and condition of the victim and the fact of two offenders justify that.

[26]     The appellant’s role was in aiding actively the commission of the offence by another with full knowledge of what had gone before.  The form his assistance took was offensive and degrading.  The limited involvement of the appellant could not lessen his culpability to less than half of that of the principal offender.

[27]     The appellant is entitled to recognition for his plea of guilty, his remorse, his previous good character and perhaps his youth.  But even generous deductions for those mitigating factors would not dictate a lower sentence than that imposed.  It cannot be held to be excessive.

[28]     The appeal is dismissed.

Solicitors:
Till Henderson King, Hamilton, for Appellant
Crown Solicitor, Auckland