R v Te Huia
[2013] NZHC 3520
•19 December 2013
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF THE COMPLAINANTS, INCLUDING NATURE OF RELATIONSHIP OF COMPLAINANTS WITH PRISONER, PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2012-096-1184 [2013] NZHC 3520
THE QUEEN
v
CRAIG TE HUIA
Hearing: 19 December 2013
Counsel: M G Wilkinson for Crown
K F Preston for Prisoner
Sentence: 19 December 2013
SENTENCING NOTES OF GODDARD J
Solicitors:
Crown Solicitor’s Office, Wellington for Crown
Public Defence Service, Wellington for Defendant
R v TE HUIA [2013] NZHC 3520 [19 December 2013]
Introduction
[1] Mr Te Huia, you appear for sentencing on one charge of sexual violation by rape contrary to s 128(1)(a) of the Crimes Act 1961. The maximum penalty for this charge is 20 years’ imprisonment. The charge arose in relation to an incident in
2005. On 8 November 2013, the District Court declined jurisdiction to sentence you and transferred your sentencing to the High Court so that the imposition of the indefinite sentence of preventive detention could be considered.
[2] Also relevant to your sentencing today is that, on 20 March 2012, you were sentenced on four charges of sexual offending in respect of three separate incidents relating to three separate victims, all unrelated to the offending for which I am to sentence you today. Those separate incidents occurred in 1995, 2002 and 2010.
[3] I can say at the outset that, having considered the matter of an indefinite sentence with some care and invited submissions from counsel for the Crown and your counsel on that subject, I am not going to impose a sentence of preventive detention. The Crown does not seek it and, in light of the two psychiatric reports, it is not appropriate in your case. I will outline my reasons for that conclusion later in the sentencing.
Current offending
[4] I turn now to your offending for which I sentence you today. At the time, you and your two children were living with the victim and her family. The victim was celebrating her 18th birthday. She was put to bed because she was intoxicated. You yourself were very intoxicated and that has been a consistent theme throughout all of your sexual offending. You entered the victim’s bedroom and got into her bed. You removed her pants and her tampon, lifted her top and began kissing her neck and collar bone. She awoke and began to cry. You raped her while she cried, only stopping after she asked you about your partner. At the time she did not wish to
make a complaint to the police for the sake of your children. To your credit, when you were ultimately charged with this offending, you pleaded guilty and that has to
be taken into account. You accept your offending but say you can only remember
“bit and pieces” of what happened.
Victim impact statement
[5] The victim refers to you as someone “I used to love dearly and trust completely”. You abused that trust and your offending has had an irrevocable effect on her life. It has affected her personal relationships and her ability to work. She has dreaded every birthday since you raped her. She feels removed from a normal life and states that your offending took away her ability to be, in her words, “the full me”.
Personal circumstances
[6] I turn now to your personal circumstances. You are a 42 year old man. Your wife passed away tragically in 2001 and this undoubtedly left a big hole in your life. You have an extensive history of alcohol and drug abuse. You started abusing at a young age, and quickly progressed to heavy use of both cannabis and alcohol. From the age of 15 until you were imprisoned, you were smoking four to five cannabis joints per day. You were heavily intoxicated at the time of each of the separate sexual offences you committed.
Previous offending
[7] You have seven previous convictions. In 1995 you were convicted of unlawfully taking a bicycle and male assaults female. In 2008 you were convicted of domestic assault. Most importantly for this sentencing, in 2012 you were convicted of two counts of sexual violation by unlawful sexual connection, one count of sexual violation by rape and one count of indecent assault on a female under the age of 16. As noted, the convictions for sexual offending arose out of offending against three separate victims, who I shall refer to as A, B and C during the years 1995, 2002 and
2010.
Victim A
[8] Victim A was a relative of your partner. The offending occurred in 1995, following victim A’s 21st birthday party. She was sleeping next to her young child on a mattress on the floor of the lounge. You climbed on to the mattress, undid her pants and digitally penetrated her. She woke up and, in her attempts to resist you, you pushed the child on to the floor, causing the child to cry. Your partner entered the room and told you to leave. Your explanation was that you mistook the victim
for your partner. This offending led to the charge of sexual violation by unlawful sexual connection.
Victim B
[9] Victim B was a different relative of your partner. The offending occurred in
2002 at a family gathering, following the unveiling of your partner’s headstone. Victim B went to sleep on the couch in the living room with her granddaughter next to her. You pulled down her pants and underwear and digitally penetrated her vagina before raping her. She attempted to resist and pushed you away. Approximately one hour later you assaulted her again in the same manner. This offending led to the charges of sexual violation by rape and sexual violation by unlawful sexual connection.
Victim C
[10] Victim C was your friend’s 14 year old daughter. The offending occurred between 21 December 2009 and 1 January 2010. You and your children were at the victim’s house to celebrate the New Year. You were a regular and trusted visitor to the house. In the early hours of the morning you entered her bedroom, placed your hands on her chest and touched her vagina on the outside of her underpants. She pushed you away and you attempted to pull her back on top of you. She broke free and ran to her parents. This offending led to the charge of indecent assault of a female under the age of 16.
Sentencing
[11] In sentencing you for those three separate offences on 20 March 2012, Judge Marshall adopted a starting point of eight years’ imprisonment for the offending against victim B. He then uplifted that by three years to reflect the charge of unlawful sexual connection in relation to victim A and 15 months for the charge of indecent assault in relation to victim C. That led to an overall sentence of 12 years and three months’ imprisonment. Applying the totality principle to that sentence, Judge Marshall reduced the starting point to 11 years three months’ imprisonment. He then deducted 3 months for remorse and 33 months for your guilty pleas, arriving at an end sentence of eight years and two months for the charge of sexual violation by rape. The Judge then imposed concurrent sentences of:
(a) three years’ imprisonment for unlawful sexual connection in relation to victim B;
(b) three years’ imprisonment for unlawful sexual connection in relation
to victim A; and
(c) 15 months’ imprisonment for indecent assault in relation to victim C.
The purposes and principles of sentencing
[12] The Sentencing Act requires me to keep in mind a number of purposes and principles relevant to sentencing. Section 7 of the Act requires me to have regard to the need to hold you accountable for the harm from your offending, and the need to promote in you a sense of responsibility for, and acknowledgement of, that harm. I need to denounce your conduct and I need to deter you and others like you from committing the same or similar offences in the future.
[13] In terms of s 8 principles, I must take into account the gravity of your offending, including your degree of culpability. I must have regard to the seriousness of the types of offences committed by comparison to other types of offending, indicated by the maximum penalty prescribed. I must also consider the general desirability of consistency with appropriate sentences. I then need to impose
the least restrictive outcome that is appropriate to your circumstances, including your personal circumstances.
Preventive detention
[14] On the issue of preventive detention, the purpose of that sentence is to protect the community from those who pose a significant and ongoing risk to the safety of its members.1 You meet two of the qualifying criteria for preventive detention.2 You were over the age of 18 at the time of the offending and the charge of rape is a qualifying sexual offence.3 The remaining criteria is that I must be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released from prison at the end of a sentence other than preventive detention.
[15] When considering whether to impose a sentence of preventive detention, I am required to take into account the following factors:4 any pattern of serious offending disclosed by your history; the seriousness of the harm to the community caused by your offending. In this regard I must take into account the widespread and terrible harm that your offending has caused to four victims and therefore to the community at large. I must also take into account information indicating a tendency to commit serious offences in future.
[16] The Court has been provided on that issue with reports from two separate health assessors, both psychiatrists, about the likelihood that you will commit a further qualifying sexual or violent offence. Both of these experts commented on the limited information available to them for their assessments and both opined that, with treatment and supervision, the risk factors in your case could be substantially diminished. The imposition of a finite sentence will enable a reformative programme to be scheduled for you while still in custody but proximate to your release.
[17] The remaining factors relevant to consideration of a sentence of preventive detention are the absence of or failure of efforts by the offender to address the cause
1 Sentencing Act 2002, s 87(1).
2 Section 87(2(a) and (b).
3 Section 87(5).
4 Section 87(4).
or causes of the offending and the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[18] As I have already noted, however, the Crown accepts that preventive detention is not the most appropriate sentencing option your case. You were apprehended for your actions in 2012 and you have not participated in any treatment to date but you have expressed a willingness to undergo such treatment. The reports written by the experts indicate that such treatment is likely to reduce your risk of offending and it is in everybody’s interests, particularly the community’s, that you undergo such a treatment programme in the prison prior to your release.
[19] All of these factors indicate to the Court that a lengthy overall and finite sentence will provide adequate protection for society. It will also grant you the opportunity to address the underlying causes of your offending by participating in a prison based rehabilitation programme proximately prior to your release, and it is important that it be at the end of your sentence.
Sentencing approach
[20] The sentencing approach I am required to follow involves considering the circumstances and seriousness of your offending and setting what is known as the starting point with the aid of any guideline decisions or comparable cases. I then need to consider whether there are any relevant aggravating or mitigating features personal to you that might increase or reduce the sentence from that starting point.
[21] In your case, there is the additional and important consideration that you were recently sentenced in March of last year for separate events. The offending for which you are now to be sentenced occurred in between those separate events. I must therefore apply the totality principle and adopt an approach that considers what the appropriate sentence would be if you were being sentenced for all of the relevant offending together. I must impose a sentence on you today that sufficiently uplifts the sentence given by Judge Marshall to reflect the totality of your offending but not obviously by an amount equivalent to a discrete sentence for this offence alone if you were being sentenced simply for this offence and the totality principle did not
apply. If you were being sentenced simply on this offence alone, and no totality principle applied, then you would be looking at a starting point of 8 years’ imprisonment and I am sure you understand that and it’s important for your victim to understand that too.5
[22] The Crown has not explicitly addressed the totality issue, simply submitting that a starting point of 8 years’ imprisonment should be adopted for the current offending, which is correct, and that there should be a significant uplift for previous offending. Also that the sentence should be imposed cumulatively, and that is also correct. That would result in a likely end sentence of around 8 years’ imprisonment to be served cumulatively. That is, however, not sustainable, nor would it accord with the sentencing approach of Judge Marshall.
[23] So, in line with Judge Marshall’s approach, I intend to also sentence you
concurrently, but obviously with uplift.
[24] I note that this was the approach adopted by Mallon J in R v Snowden, a case involving 17 counts of sexual offending over 20 years and three separate complainants.6 Mallon J imposed concurrent sentences for all of the offending.
[25] In any event, it will make no different to the end sentence. In R v Barker, the key principles to be applied when sentencing for multiple offending were stated as:7
(a) reflecting the totality of the offending;
(b)that the Court will not insist that the total sentence be arrived at in any particular way; and
(c) that the total sentence must represent the overall criminality of the offending and the offender.
5 The totality principle has been applied to situations where there are successive but proximate sentencings for separate events: R v Johansen (1997 15 CRNZ 111 (CA)) at 120.
6 R v Snowden [2012] NZHC 604.
7 R v Barker CA57/01, 30 July 2001 at [10].
[26] These principles survive the enactment of the Sentencing Act 2002.8 The
Court of Appeal commented recently that:9
Sections 84 and 85 of that Act describe when concurrent and cumulative sentences are generally appropriate. But the guidelines do not have the effect of trumping the central principle of sentencing for multiple offending that requires that the total sentence must represent the overall criminality of the offending and the offender.
[27] The best way to arrive at a total sentence that represents the overall criminality of the offending and the offender is to consider a starting point for the lead offence of rape, and then apply an uplift to reflect the other offending.
Sentencing
[28] I have decided to adopt the same lead offence and starting point as Judge Marshall. Judge Marshall applied an uplift of four years three months to reflect the other charges. Applying the totality principle, the Judge reduced that sentence by 1 year. In reality therefore, the Judge applied an uplift of three years and three months. The task for me is to assess whether that uplift is sufficient to reflect the totality of all your other offending: the count of unlawful sexual connection; the count of indecent assault; and the current count of unlawful sexual violation by rape.
[29] In order to determine the appropriate uplift for the count of sexual violation by rape, it is necessary to consider all of the aggravating and mitigating features of that offending.
[30] The aggravating features of the offending present in this case are:
(a) A degree of planning and premeditation. While your offending was not planned or premeditated to any degree, nonetheless, it has an element of premeditation, as you entered the victim’s room and
removed her clothing before having sexual intercourse with her.
8 R v Xie [2007] 2 NZLR 240 (CA) at [18].
9 R v Dodd [2013] NZCA 270 at [33].
(b)Then there’s the vulnerability of the victim because of her intoxication, she was asleep and she was a young person as opposed to your much greater age.
(c) Then there’s the clear harm you have caused to the victim and her victim impact statement demonstrates the destructive impact that your offending has had upon her.
(d)Then there is the gross breach of trust. Offending against a family member involves a significant breach of trust. In this case, you are the victim’s older relative and in addition to that, you were living in her home at the time of the offending.
[31] There are no mitigating features of your offending.
[32] In my view, an uplift of six years three months is appropriate to reflect this additional offending.
[33] I then deduct 5 per cent for the remorse shown by you in taking responsibility for your offending and your willingness to engage in a sexual offender treatment programme.
[34] I then deduct 25 per cent for your guilty plea. That brings the end sentence to approximately 10 years.
[35] Because of the particular approach required for this sentencing, it is necessary to impose a discrete cumulative sentence additional to the sentence imposed by Judge Marshall.
[36] If, in 2012, the sentence that would have been imposed was 10 years’ imprisonment, as opposed to the sentence you did receive of 8 years 2 months’ imprisonment, it is necessary to impose a sentence of 1 year 10 months’ imprisonment. That represents the difference between what you would have received and what you did receive.
[37] I want to stress that, particularly for the benefit of the victim, again whose presence I acknowledge, that had I been had I been sentencing Mr Te Huia for his offending against you alone, he would have received a sentence with an eight year starting point. I would have reduced this by 5 per cent for remorse and 25 per cent for his guilty plea. The end sentence would have been five years' seven months imprisonment.
Minimum period of imprisonment
[38] I am now required to consider whether to impose a minimum period of imprisonment. In your case Mr Te Huia, I consider it necessary to impose a minimum period of imprisonment of half of the sentence imposed. That means you will be eligible for parole after 5 years' imprisonment. I see that as necessary to hold you accountable for the harm done to the victim and the community by your offending, and to denounce your offending.
[39] You may stand down.
Goddard J
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