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 a young age, though you nevertheless maintained employment in various jobs.

[7]      You have had a number of relationships and have a number of children. Your first serious relationship was when you were 21.   It lasted about two years.  You

described  to  Dr  Heads  some  incidents  of  domestic  violence  which  eventually brought an end to the relationship.

[8]      Your first sexual offending occurred a few years later, when you were not in a serious relationship, and resulted in your imprisonment from 1991 to 1997.

[9]      Your next serious relationship was after your release from prison.  You had met the woman in your church group which was supporting you following your release from prison.   You married her in 1998.   Your marriage lasted ten years. During that time you had three children together.  You report this as being a happy, settled period with no problems of violence or jealousy.  You were not convicted of any offending during this period. You also report not drinking during this period.

[10]     You formed another relationship with a woman in 2009.  You remained with her for around 18 months.  It came to an end as a result of an incident of violence. You described this as an incident in a bar when she was intoxicated and you were not and that the two of you had a big argument in which she put you down in front of everyone and you eventually slapped her.  You have a conviction in relation to this and an earlier incident of violence in that relationship.

[11]     Your next relationship was with the woman who was the victim of the rapes for which you are now being sentenced. You reported some arguments developing in the course of that relationship when she repeatedly told you of approaches to her from other men.  You accept that on one occasion, during one of those arguments, you  punched  the  woman  when  you  were  both  very  drunk.    You  described  to Dr Heads that the relationship had got “back on line” after these arguments.  You deny  that  this  relationship had  ended  when  you  committed the  rapes  and  you maintain that the sex was consensual.

[12]     Dr Heads’ assessment is that “there is a pattern of serious problems in [your] relationships, involving jealousy, insecurity, issues relating to trust and communication and domestic violence.”

Previous convictions

[13]     You have a long list of previous convictions.  They include various violent, property, vehicle-related and non-compliance offences.  Of particular relevance for the purposes of your sentencing today are the following matters.

[14]     In 1991 you were convicted of sexual violation by rape and unlawful sexual connection in relation to a horrific sexual assault on an 11 year old girl. After a night of partying and drinking you went into the house of an acquaintance near the house where you were staying, through the unlocked back door.  You severed the telephone cord with a knife and subjected her to rape and anal violation. A great deal of blood was found in and around her room.   It seems the young victim was initially too traumatised to identify you, but eventually she was able to.  You did not accept the full extent of the assault as described by the young girl but you did plead guilty to the rape and anal violation.  You were sentenced to a term of imprisonment of eight

years and 10 months.1     You were released from prison in late 1997 and did not

reoffend for over 10 years after that.

[15]    In relation to the first woman you lived with after the breakdown of your marriage, you have three convictions.2    The first relates to an incident in January

2010.  You had been drinking alcohol with the woman at her apartment. You forced the woman onto her bed.  You slapped and punched the woman several times, including around her head.  The woman suffered a broken bone in her hand, a black eye, bruising to her face and body and she was off work for eight weeks.  You were convicted of injuring with intent to injure.  A few months later, when you were with the woman at a bar and were intoxicated, you slapped the woman across her face. The next morning, when you were still intoxicated, you threw a garden ornament through the front door window of the woman’s apartment when she would not let you in.  You were convicted of male assaults female and wilful damage.  For those three matters you were sentenced on 16 February 2011 to four months’ community

detention and one year’s intensive supervision.

1      R v Te Whiu HC Palmerston North S26/91, 12 November 1991.

2      Details from summary of facts.

[16]     It was in the last month of that period of intensive supervision that the rapes for which you are being sentenced today occurred.

[17]     While you  were on  bail on  the rape charges there was  a further matter involving the touching a woman’s buttocks in a bar in June 2012.  You denied the offending but were convicted after a defended hearing in the District Court and received a first strike warning.3  You were sentenced to six months’ imprisonment.4

[18]     As this offending highlights you are a significant risk to women with whom you might form a relationship.   The risk is of both physical and sexual violence. That is the conclusion of Dr Heads who says:

In my opinion his pattern of offending and his lack of understanding of the factors contributing to his offending behaviour are of serious concern.  I consider,  given  these  factors,  that  he  presents  a  very significant  risk  to others, including particularly future partners.  I consider, given his history, that there is a very significant risk of future serious offending, including further sexual offending.

[19]     Consistent with this, Ms Pracy says:

[I]t is considered that Mr Te Whiu shares the characteristics of a group of men at high risk of further serious sexually violent re-offending.  Based on his history, should he re-offending (sic) more likely offence types are violent or sexually violent offences which may range in severity from assaults (indecent or common), to serious sexually violent offences.  Based on his history, serious sexual offences would likely involve prolonged offences where he engages in repeated sexual assaults.   In addition, should future sexual offending occur it may involve the presence of a weapon or use of intimidation or physical force to control the victim.  Potential victims of violent sexual offending are likely females, known to Mr Te Whiu, either as acquaintances, or more closely.

Sentencing

[20]     The issue today is whether I sentence you to a fixed jail term, which will be lengthy, or whether the risk you pose means that you should be sent to jail for as long

as  it  takes for  people to  be satisfied the risks  you  pose  have been sufficiently

3      New Zealand Police v Te Whiu DC Christchurch CRI-2012-009-9474, 30 October 2012.  The offending for which Mr Te Whiu is being sentenced occurred prior to this offending. As a result this is not a situation where a second strike warning is to be given: Sentencing Act 2002, s 86A.

4      New Zealand Police v Te Whiu DC Christchurch CRI-2012-009-6655, 26 November 2012.

reduced, that is, preventive detention.  I start with considering what finite sentence should be imposed for the offending.5

[21]     I agree with the Crown and your counsel that the aggravating factors of your offending warrant  a  starting point  in  what  is  called  band  two  of  the  guideline judgment from the Court of Appeal.6    Counsel for the Crown submits that, within that band, a starting point of nine to 10 years’ imprisonment is appropriate.  I agree with that assessment, given that the woman was effectively detained in her own home over a number of hours, was subjected to intimidating comments and conduct and  was  raped  three  times.7    Including  an  uplift  for  your  previous  relevant convictions I would arrive at a sentence at the top of that range, that is ten years’ imprisonment.  There are no mitigating factors that would reduce that sentence.  To reflect the fact of three rapes and the need for individual deterrence and public safety, I would impose a minimum period of imprisonment of five years.

Preventive detention

[22]     I now turn to the question of preventive detention.  In determining whether to impose preventive detention there are five factors to take into account.8  They are:

(a)       whether there is a pattern of serious offending;

(b)      the seriousness of harm to the community caused by the offending; (c)           information about your reoffending risk;

(d)      the  absence  or  failure  of  efforts  to  address  the  causes  of  your

offending;

5      A sentence of preventive detention can only be imposed if I am satisfied that Mr Te Whiu is likely to commit another qualifying sexual or violent offence if released at the sentence expiry date of the sentence I would otherwise impose: Sentencing Act 2002, s 87(2).

6      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

7      I agree with the Crown that the offending is not similar to the examples of cases at the lower end of band 2 and that the examples at the higher end involve a greater degree of actual physical violence.  See also R v Winikerei HC Rotorua CIR-2008-029-1187, 25 June 2010; R v Garraway [2013] NZHC 611.

8      In accordance with s 87(4) of the Sentencing Act 2002.

[23]     In your favour is the preference for a finite sentence, your willingness to engage in interventions and, in particular, your ability not to engage in physical or sexual violence or indeed any offending, as demonstrated during the ten year period after your release from prison.  I note your letter that has been placed before me, and your remorse about that offending in 1991, and the shame that you have from that which makes it difficult for you to talk about that offending.  It is certainly to your credit and was a remarkable achievement that you were able to then have a happy ten year period with your then wife and the children that you had with her. Your counsel submits this shows you are prepared to and can learn.  Your counsel submits that there is a possibility that your offending can be ended if protective factors are in place, including treatment which you are willing to engage in, should lead the Court away from preventive detention.

[24]     However against that are the following factors:

(a)      You committed a serious sexual violation in 1991.  Despite the long jail term you have committed another serious sexual violation albeit arising in a different context than the earlier one.  You did so at the end  of  a  period  of  intensive  supervision  for  serious  violence  on another  woman  with  whom  you  were  intimate.     As  Ms Pracy comments, the “protective factors” in place during the ten years of your marriage are not “universal” and have not prevented you from reoffending.

(b)Although if you served the full finite sentence you would be 61 years of age on your release and age can be a protective factor, here the psychologist has doubts that it will be for you because of your age for the recent offending.

(c)      There is no doubt that your offending caused serious harm to the victims.

(e)      Your history demonstrates that you do not cope when things go wrong in a relationship and that you pose a risk to women who become involved with you.

(f)       The risk is of serious sexual violence in particular.

(g)The risk is a high one.  Dr Heads describes it as a “very significant risk”.  The risk assessment tools Ms Pracy has used placed you in the high risk category.

[25]     Because of these factors I consider that you are likely to commit a further qualifying offence in the future, and therefore preventive detention is necessary.

Sentence

[26]     On the three charges of rape  you  are sentenced to preventive detention. There will be a minimum term of imprisonment of five years.10

[27]     There will also be a protection order in favour of the victim of the present offending.11    That will give her comfort that you cannot contact her.  The usual conditions  regarding  programmes  will  not  apply  because  the  prison  authorities and/or the Parole Board will put in place whatever is appropriate.

[28]     I note that you have received a first strike warning in the District Court when the convictions were entered. It is not necessary that I repeat that warning now.

[29]     Stand down.

Mallon J

9      Compare with R v D [2012] NZHC 629 and R v Kaimoana CA172/87, 17 December 1987 where gap and guilty plea, remorse or other factors were present.

10     Sentencing Act 2002, s 89(2).  The minimum term of imprisonment, being the longer of that required to reflect the gravity of the offence, or that required for the purposes of the safety of the community in the light of your age and the risk posed by you at the time of sentencing.

11     Section 123B.