R v Te Whiu - [2013] NZHC 2308

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-085-1243 [2013] NZHC 2308

THE QUEEN

v

MOHI TAYLOR JOHN TE WHIU

Hearing: 5 September 2013

Counsel:

K S Grau for the Crown
V C Nisbet and P Walker for Mohi Te Whiu

Sentence:

5 September 2013

SENTENCING REMARKS OF MALLON J

Introduction

[1] You are here for sentencing having been convicted, following a District Court jury trial, of three counts of sexual violation by rape.

[2] Sentencing is taking place in the High Court because the Crown is seeking a sentence of preventive detention.

Circumstances of the offending

[3] The victim of the rapes was a woman with whom you had been in a relationship for around 18 months. It had only recently ended when, on the morning of 21 March 2012, you visited the woman’s house. You still had a key and let yourself in. You asked her if she wanted to have sex with you two or three times. She said no. On three separate occasions over the ensuing six hours you raped her.
The woman gave evidence that you said to her “welcome to your day of

R v TE WHIU [2013] NZHC 2308 [5 September 2013]

devastation”, you threw her phone across the kitchen so she could not contact anyone, and whenever she tried to leave the bedroom you asked her where she was going or followed her. When you realised that her son was due home you prepared to leave the house. Before you left you pinned her head against the wall by pressing your fist against her temple.

[4] Your defence at trial was that you had consensual sex with the woman. The jury’s verdict means that they rejected this. You continue to maintain your innocence, and say that you intend to appeal your convictions.

Victim impact

[5] The offending was physically painful at the time for the woman and continued to be for some time afterwards. Emotionally it has had a devastating effect. It has led to a loss of confidence, panic attacks, feelings of fear and vulnerability, eating disorders, sleep deprivation. She wonders how she will ever find trust and love with someone again when the one she trusted and loved treated her in this way. She and her son have had to move houses and she has been unable to sustain work. You have heard from her today when she read portions of her victim impact statement.

Circumstances of the offender

[6] You are 51 years old. You reported to Dr Heads, a psychiatrist, and Ms Pracy, a psychologist, a tough childhood which they consider would have affected you. You were initially raised by your mother but then went to live with your father and grandparents. There was alcohol abuse and some physical abuse in the household. You left school at 14 and began offending around then or earlier. As a result you were placed in state care and later, in a boys’ home. You began abusing alcohol yourself from…

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 Te Whiu

Details

AGLC: R v Te Whiu [2013] NZHC 2308
Case: [2013] NZHC 2308
Decision Date: 5 September 2013

CaseChat Overview and Summary

Mohi Taylor John Te Whiu was sentenced in the High Court of New Zealand for three counts of sexual violation by rape. Te Whiu had been in a relationship with the victim for approximately 18 months, which had recently ended when the offences occurred. Despite the victim's refusal to engage in sexual activity, Te Whiu raped her three times over the course of six hours. Te Whiu's defence was that the sexual activity was consensual, but the jury rejected this claim.

The court was required to determine whether Te Whiu should be sentenced to a fixed jail term or if preventive detention was necessary due to the risk he posed to the community. The court considered various factors, including the pattern of serious offending, the seriousness of harm caused by the offending, the risk of reoffending, the absence or failure of efforts to address the causes of the offending, and the offender's willingness to engage in interventions.

The court determined that Te Whiu should be sentenced to preventive detention due to the high risk he posed to women in relationships, the seriousness of the harm caused by the offending, and the lack of evidence that he had addressed the causes of his offending behaviour. The court also considered that Te Whiu had a significant history of violent and sexual offending, including a previous conviction for raping an 11-year-old girl. The court imposed a sentence of preventive detention with a minimum term of imprisonment of five years and a protection order in favour of the victim.

In summary, the court sentenced Te Whiu to preventive detention for his three counts of sexual violation by rape, recognising the high risk he posed to women in relationships and the seriousness of the harm caused by the offending. The court also imposed a minimum term of imprisonment of five years and a protection order for the victim.

Orders