R v Te Huia
[2016] NZHC 1045
•19 May 2016
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-10363 [2016] NZHC 1045
THE QUEEN
v
MICHAEL TE ARAWAKA TE HUIA
Hearing: 19 May 2016 Counsel:
R M A McCoubrey & E Walker for the Crown
P Dacre QC amicus curiae
S N B Wimsett - counsel appointed to assist the Court
S Gray for Mr Te Arawaka Te HuiaSentence:
19 May 2016
SENTENCE OF DUFFY J
Solicitors:
Meredith Connell, Auckland
R v TE ARAWAKA TE HUIA [2016] NZHC 1045 [19 May 2016]
[1] Michael Te Arawaka Te Huia, you were found guilty by a jury of 21 criminal offences that include serious sexual offending and physical violence towards your former female partners. Those offences span a period of 30 years.
Offence Date Maximum penalty Victim 1 – [E] Injuring with intent to injure Between 21 May 1984 and
20 May 1986
5 years imprisonment Sexual violation by rape
(representative charge)
Between 1 January 1987 and
30 June 1994
14 years imprisonment Sexual violation by rape
(representative charge)
Between 1 July 1994 and 15
January 2002
20 years imprisonment Sexual violation by rape Between 15 February 1994
and 15 March 1994
20 years imprisonment Sexual violation by unlawful
sexual connection
(representative charge)
Between 7 September 1988
and 28 February 2002
20 years imprisonment Threatening to do grievous
bodily harm
Between 1 January 2000 and
31 December 2001
7 years imprisonment Assault with a weapon Between 4 December 2001
and 15 January 2002
5 years imprisonment Victim 2 – [T] Kidnapping (representative
charge)
Between 1 January 2004 and
30 March 2006
14 years imprisonment Threatening to do grievous
bodily harm
Between 1 January 2005 and
1 June 2005
7 years imprisonment Male assaults female
(representative charge)
Between 1 January 2004 and
30 March 2006
2 years imprisonment Male assaults female 29 December 2004 2 years imprisonment Assault with a weapon Between 4 December 2001
and 15 January 2002
5 years imprisonment Male assaults female 9 July 2005 2 years imprisonment Male assaults female Between 1 August 2005 and
30 August 2005
2 years imprisonment Injuring with intent to injure Between 1 August 2005 and
30 August 2005
5 years imprisonment Victim 3 – [N] Male assaults female Between 1 August 2005 and
30 August 2005
2 years imprisonment Victim 4 – [M] Sexual violation by rape
(representative charge)
1 January 2007 and 8
October 2014
20 years imprisonment Male assaults female 1 January 2007 and 31
December 2007
2 years imprisonment Sexual violation by rape 11 April 2012 20 years imprisonment Male assaults female 10 January 2013 2 years imprisonment Threatening to do grievous
bodily harm
Between 1 March 2013 and
30 September 2013
7 years imprisonment
[2] There is a similarity in the offending towards each partner insofar as it involved these common features: you engaged in relationships with women who were younger than yourself. With your first partner, [E], she was 15 when you first met her; with your second partner, [T], she was 17 when you first met her; and with your third partner, [M], she too was 15 when you first met her. Their youth and inexperience would have contributed to them being vulnerable to someone like yourself.
[3] Each woman described the relationship starting out in a way that gave her cause for belief and hope that it would be a good, worthwhile relationship. You took them out to dinner, for drives in your car. They all came from impoverished backgrounds and so the attention and good times that you initially showered on them would have made you appear very attractive to them. [M] said in her evidence she believed she had found a real man who would protect her.
[4] However, with each woman as time went on you became domineering and controlling. You restricted her freedom of movement. You were not averse to using physical violence or threats of physical violence to ensure your control of them. In the case of [T] this control went so far as to commit the offence of kidnapping through you unlawfully detaining her in the home that you shared together with your mother. Ultimately the lives of your former partners must have been lives of utter misery.
[5] With [E] and [M] you engaged in sexual relations with them in circumstances where you were indifferent to whether they consented or not. Hence the convictions on the representative charges of rape and the specific charges.
[6] [E] and [M] each described waking up from sleep to find you engaged in sexual intercourse with them. Both women described you as someone who was insistent on sexual relations whenever you felt like it, despite how she felt.
[7] In the case of [E], on one specific occasion following a touch rugby end of season party, at a time when she was heavily intoxicated, you took her to a neighbouring driveway and raped her. You must then have left her in an intoxicated
state on the driveway. The householder, who was either returning to or leaving his home, ran over her with his vehicle and boat trailer. She was hospitalised as a result of this incident. The way you treated her on this occasion demonstrates a callous disregard for her.
[8] Similarly with [M], on one specific occasion you insisted on sexual intercourse with her just days after she had given birth. She was in the Starship Neonatal Unit. A midwife/nurse gave evidence that [M] was still sore and experiencing the effects of having recently given birth. When this nurse entered the room she found you engaged in sexual intercourse with [M]. Your two young children were in the room at the time. In convicting you of rape for this occasion the jury accepted [M]’s evidence that she had not consented willingly to this sexual activity. The circumstances of this rape demonstrate a callous expression of self- entitlement. You were seemingly oblivious to the fact that [M] had only recently given birth and so would find the experience painful as well as the fact the rape was occurring before your two young children, and in a place that was not private to you and M. Apart from physical discomfort, she endured the humiliation of being seen in the act of sexual intercourse with you by the midwife/nurse.
[9] In the case of [E] the sexual offending included representative charges of anal rape as well as vaginal rape. In the case of [M] the sexual offending involved vaginal rape only. In all there are six convictions for sexual violations.
[10] The level of control you sought to exercise over each of your former partners came to a head in the case of [T] when you held her against her will in the house you shared with your mother. This resulted in the kidnapping offence of which you were convicted. Such was the control that you exercised over [T] that she was too afraid to leave the house and seek refuge in her mother and stepfather’s home despite it being next door to where you lived.
[11] When you became enraged with your partners you thought nothing of striking them, either by punching them, slapping them, elbowing them or throwing things at them. Such conduct was a regular occurrence. You also threatened to do grievous bodily harm to them. With [E] the violence involved smashing her front teeth with a
chain. With [T], on one occasion you elbowed her so badly during the course of a car ride from New Plymouth to Auckland that when you arrived in Auckland she had to be carried from the car where the assault had taken place.
[12] Each of your partners was weaker than you, smaller than you and more lightly built than you and therefore vulnerable and defenceless. In short, you bullied them relentlessly.
[13] The despair your partners came to feel is best expressed by [E] who, when she was giving evidence relevant to the offence of assault with a weapon as a result of your driving your car towards her at speed, said she sat there thinking do it, just do it. At that moment her despair was such that she no longer wished to continue living.
[14] Each woman was badly damaged emotionally and experienced some physical damage as a result of her relationship with you. In the case of [E] and [T] the physical violence reached the point of amounting to the offence of injuring with intent to injure, which is an offence that carries a maximum penalty of 5 years’ imprisonment.
[15] The victim impact statements that have been provided to the court demonstrate the devastating and long-lasting effects of your offending on your three former partners. [E] experiences ongoing physical injuries and emotional harm as a result of your abuse. She said she finds it difficult to rest at night because you often took advantage of her vulnerability to offend against her while she was sleeping. She is devastated about the loss of her relationship with her children and her wider family which was one of the consequences of her relationship with you. She is only recently rebuilding some of those connections. She feels that you have stolen 21 years of her life that she will never get back.
[16] [T] describes her relationship with you as the worst two years of her life. She says that you caused immense trauma and emotional harm which continues to affect her life. She is fearful of long car rides because of the abuse that you inflicted upon her on the 2005 trip from New Plymouth to Auckland, which led to the injuring with
intent to injure offence of which you have been convicted. Her fears have restricted her movements and have prevented her from travelling any further than Hamilton. She finds it difficult to trust people and suffers from social anxiety which discourages her from attending parties or social functions.
[17] [M] similarly finds it very difficult to trust others. She continues to suffer the emotional after-effects of your sexual offending against her. Like [E], she mourns the loss of her children who have been taken into the care of Child, Youth and Family Services. She wants to move on with her life and to forget everything that you have put her through.
[18] The probation report has identified your offending being related to your relationships, your attitudes, violence and related sexual arousal. Interestingly you do not have a significant criminal history. There are offences of assault, burglary, male assaults female and assaulting a child in the 1970s for which you received borstal training. The offending from the 1980s shows minor drug offending, driving with excess blood alcohol, driving while disqualified and assault with intent to injure. None of these offences resulted in your receiving a sentence of imprisonment, which reflects the seriousness with which the sentencing court viewed them. In the mid to late 2000s there are minor drug offences, as well as failing to answer District Court bail. From reading your criminal history there is nothing that would suggest that over the period of time when that history was acquired you were committing the serious offences for which you are now to be sentenced. I note such offending began in 1986 and therefore overlapped the time when the historic offences were dealt with.
[19] The probation report shows that you have no insight whatsoever into the present offending and why you are now to be sentenced for that offending. You maintain your innocence. The probation report writer notes you do not express remorse or empathy for the victims, indeed you are said to have shifted responsibility by identifying their earlier exposure to abuse from others as being the catalyst behind their allegations. You see them as people who have mental health issues and in your view their allegations are false. I remind you that is not what the jury considered after a trial of four weeks.
[20] The offending related factors have been identified as relationship difficulties, a propensity for violence, offending related sexual arousal and an inflated sense of entitlement. I agree with those conclusions. The report writer notes that your past and present offending history, the gravity and seriousness and nature of the current matters, the multiple victims and the level of control and violence inflicted on them over 30 years contributed to the report writer’s assessment of you as being at a high likelihood of reoffending and harm to others. I agree with that assessment and I think there is particular risk of you harming any new partner with whom you become involved.
[21] The report writer notes that there are custodial treatment programmes for men who have offended sexually, but you have expressed a determination not to participate in any such treatment. Accordingly you would not meet admission criteria. The report writer concludes that due to the enormity of your offending you pose a significant high risk to women with whom you are in an intimate relationship. I agree with that view. You are said to have an inflated sense of self worth and entitlement. This, together with your lack of insight into your offending and your willingness to indulge in violence towards those who are close to you, suggests there is little to be positive about for your future. The report writer is of the view that you will continue to pose a high risk of harm to others and the community until you choose to take responsibility for your offending, proactively address your needs and demonstrate long term change. I agree with that view.
Starting point
[22] Whilst the offending against three victims would ordinarily call for cumulative sentences, s 85(3) of the Sentencing Act is relevant here. For the reasons expressed in that section I propose to impose concurrent sentences of imprisonment on you.
[23] I propose to set the starting point by reference to the serious sexual offending against [M] and [E] as this offending can best be considered in the bounds of the
established tariff case for rape sentences.1 I will start with the rape in the Starship
1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
Neonatal Unit and the representative rape conviction in respect of [M]. I will then address the sexual offending against [E] followed by the violent offending against all four of the victims.
[24] There are a number of aggravating factors in respect of your offending against [M]. The first is that you chose to offend against a vulnerable young person. You were 48 years old when you commenced your relationship with [M]. She was only 15 and had been in and out of CYFS care for a number of years. You continued to offend against her for the remainder of your relationship, including the various times when she was pregnant with each of your four children. This was cowardly offending against a person who did not have the support systems in place to protect her from someone like you.
[25] The scale of your offending is another aggravating factor. Repeated sexual violation and abuse over an extended period of time is serious offending, particularly if the offending is cruel or callous. I have already described the rape of [M] after recently giving birth as being a callous and degrading act on your part. I also consider it demonstrates a breach of trust. She had recently given birth to your child and at that time she was entitled to expect you to be protective of her and not to abuse her in the way that you did. The rape was particularly humiliating for [M] as it occurred in a hospital setting where she could not control her privacy and so the result was that the rape was viewed by a midwife/nurse. There is also the presence of the children.
[26] Under different circumstances, your violent behaviour towards [M] would also be taken into account in determining an appropriate starting point for the sexual offending. However as I have said, I intend to address the matter of your violent offending separately at a later stage.
[27] For the sake of completeness, I also note that your degree of culpability is not reduced by any sense of entitlement arising from the fact that you were in a
relationship with [M] during the period when the offending occurred.2
2 R v AM, above n 1, at [61].
[28] I now turn to your sexual offending against [E]. With [E] the sexual offending was more serious in that the offending involved one representative charge of rape, one specific charge of rape, as well as one representative charge of anal rape, each of which attract a maximum penalty of 20 years imprisonment. There is one further representative charge of rape which occurred at a time when the maximum penalty was 14 years imprisonment, which I take note of. In terms of all the sexual offending in relation to [E] there were a number of aggravating features associated with the offending.
[29] As with [M], your relationship with [E] involved a vulnerable victim. At the time when you commenced your relationship with [E] she was only 15 years old. You were 24 years old. You were a youth worker at that time and therefore your actions represented a breach of trust. You continued to offend against [E] whilst she was pregnant and vulnerable.
[30] Your sexual offending against [E] was callous and degrading. She took extreme measures to try and prevent you from raping her and physically attempted to fight you off, yet you persisted. There is the one occasion, as I described earlier, when you left her lying in a neighbour’s driveway following your rape of her and she suffered a significant degree of harm as a result. Your offending took place over 15 years and caused significant emotional harm as well as physical harm.
[31] I consider that when the seriousness of your offending against [E] is taken into account with the offending against [M], your sexual offending falls within band
4 of R v AM as offending in this rape band involves multiple offending over considerable periods of time. The Crown and your counsel, Ms Gray, accept that band 4 is appropriate. Mr Wimsett, who is junior counsel assisting the Court, filed submissions arguing that your sexual offending fitted within the lower end of band 3, but those submissions approached the offending on an individualised basis for [M] and [E]. This is wrong where there has been multiple offending such as yours. I propose to adopt a starting point of 16 years which is the lowest level of band 4. I consider this to be appropriate in light of your persistent, cruel offending against multiple victims.
[32] I now turn to the other offending against all four victims, but particularly the three victims who are your ex-partners. Whilst there is no sexual offending involving [T], the charge of kidnapping is a serious charge that carries a maximum sentence of 14 years imprisonment. There is also the violent physical offending against the four victims. This included two offences of injuring with intent to injure, seven offences of male assaults female, two assaults with a weapon and three offences of threatening to cause grievous bodily harm. I consider that a fair reflection of the totality of that offending would be an uplift of at least three years, which would bring the end sentence to one of 19 years imprisonment. My view is that the seriousness of the physical violence could well have resulted in a greater length of imprisonment. Much of it was unrelated to the sexual offending and therefore cannot be reflected in the starting point for that offending. However, I bear in mind the totality principle and for that reason I have kept the uplift at three years imprisonment.
[33] Because your criminal history is not significant there is no basis for uplifting the sentence to accommodate aggravating features of the offender.
[34] Your lack of insight into your offending and your lack of remorse mean that there are no mitigating factors that would warrant a reduction in the overall sentence.
[35] I have given consideration to ss 7 and 8 of the Sentencing Act, and in particular s 8(g) which states that I must impose the least restrictive outcome that is appropriate in the circumstances. I consider that a sentence of 19 years imprisonment is the least restrictive sentence I can impose upon you given the nature of the offending, both in terms of the seriousness of the offending and the duration and time of this offending which has spanned 30 years.
[36] There are few comparable cases. One that I found helpful was R v Gage where with a similar pattern of offending involving five women over a shorter period of time, the Court reached a sentence of 19 years imprisonment before giving a
discount for a guilty plea.3
3 R v Gage [2013] NZHC 2053.
Minimum period of imprisonment
[37] I now turn to consider whether or not there should be a minimum period of imprisonment.4
[38] If an offender receives a determinate sentence of imprisonment of more than two years, the court may order that the offender serve a minimum period of imprisonment, which is a minimum period that is longer than the one-third of the length of the sentence that is the default period under the Parole Act 2002.
[39] The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient either to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or protect the community.
[40] A minimum period of imprisonment must not exceed two-thirds of the full term of the sentence.5
[41] The central consideration is the offender’s level of culpability, which is increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.6 The sentencing considerations in ss 7,
8 and 9 of the Sentencing Act, including the circumstances of the offender, are relevant in fixing a minimum period of imprisonment.7 Ms Gray accepted that a minimum period of imprisonment was warranted, which was a sensible and responsible approach.
[42] Mr Wimsett in his role as counsel assisting the Court submitted filed written submissions saying that it would be inappropriate to impose a minimum period of imprisonment in respect of your offending against [E]. The majority of those
offences took place before the current laws regarding minimum periods of
4 Sentencing Act 2002, s 86.
5 For the purpose of the imposition of minimum periods of imprisonment, see R v Brown [2002] 3
NZLR 670 (CA) at [28].
6 See R v Brown at [32].
7 See R v Brown at [27]; R v Nguyen [2009] NZCA 239; R v Gordon [2009] NZCA 145; R v Walsh
(2005) 21 CRNZ 946 (CA).
imprisonment were enacted in 2002. Mr Wimsett suggested that the imposition of a minimum period of imprisonment would be contrary to s 6 of the Sentencing Act, which states that an offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and the sentencing, to the benefit of the lesser penalty.
[43] However, I am not persuaded by those arguments. Section 152 of the Sentencing Act explicitly states that the court may impose a minimum period of imprisonment in respect of a serious violent offence committed before 2002. Sexual violation is a serious violent offence.8 In any case, I note that the power to impose a
minimum period of imprisonment dates back to 1993.9 The law at that time
empowered the court to impose a minimum period of imprisonment of up to 10 years in respect of serious violent offences. Three of the sexual violation convictions in respect of [E] occurred from 1994 onwards. Had you been convicted of those offences at the time when they actually occurred or shortly thereafter, the court may very well have imposed a minimum period of imprisonment. It follows that I do not consider that you are entitled to the benefit of any lesser penalty in respect of those offences.
Analysis
[44] There is no doubt that offending which can be placed in the upper end of band three or the lower end of band four of R v AM is inherently brutal and callous. The question is whether the one-third default minimum is insufficient to hold the offender accountable for the harm done, denounce the conduct, deter the offender or protect the community. Given the nature of the offending I do not think that the one third default minimum is sufficient to hold you accountable for the harm that you have done.
[45] You have no insight into the offending for which you are now being sentenced. As I said earlier, you have attempted to blame the victims for what
occurred. You appear to be completely indifferent to the harm that you have caused
8 Sentencing Act 2002, s 2.
9 Criminal Justice Act 1985, s 80 (as at 1 September 1993).
to them. Your refusal to accept responsibility for what you have done reflects attitudes that are dangerous for society. On the basis of what you have revealed of yourself in the pre-sentence report, I consider that the one-third minimum is not enough to deter you from further offending.
[46] I also consider that the gravity of your offending is such that a one-third minimum parole period will not be enough.
[47] I consider instead that a 50 per cent minimum period of imprisonment should be imposed. This amounts to a minimum period of 9 years and 6 months imprisonment.
[48] Mr Te Arawaka Te Huia please stand.
[49] For the sexual violation offences in charges 2, 4, 5, 18 and 21 you are sentenced to 19 years’ imprisonment.
[50] For the offence of rape in charge 3 you are sentenced to 10 years’
imprisonment.
[51] For the offence in charge 9 (kidnapping) you are sentenced to 7 years’
imprisonment.
[52] For the offences in charges 6, 10 and 23 (threatening to commit grievous
bodily harm) you are sentenced to 5 years’ imprisonment.
[53] For the offences in charges 1 and 17 (injuring with intent) you are sentenced to 3 years’ imprisonment.
[54] For the offences in charge 7 and 13 (assault with a weapon) you are
sentenced to 3 years’ imprisonment.
[55] For the offences in charges 11, 12, 14, 15, 16, 19 and 22 (male assaults
female) you are sentenced to 18 months’ imprisonment.
[56] All sentences will be served concurrently which means the total end sentence
is one of 19 years’ imprisonment.
[57] For the sexual violation offences in charges 2, 4, 5, 18 and 21 (sexual violation offences where the maximum penalty is 20 years imprisonment) I impose a minimum period of imprisonment of 9 years six months.
[58] Mr Te Arawaka Te Huia, please stand down.