R v Timbun HC Auckland CRI 2007-004-1896

[2010] NZHC 368

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2007-004-1896

THE QUEEN

v

DAVID MEKWIN TIMBUN

Hearing:         2 March 2010

Appearances:  Mr S McColgan and Mr M Robinson for Crown

Mr S Patel for Prisoner

Sentence:       2 March 2010

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland
Counsel:

Mr S D Patel, Auckland

R V TIMBUN HC AK CRI-2007-004-1896  2 March 2010

[1]      Mr  Timbun,  you  appear  for  sentence  having  pleaded  guilty  in  the  District Court  to  four  counts  of  rape  and  five  counts  of  unlawful  sexual  connection.   The maximum penalty for each of those charges is 20 years imprisonment.   In addition, you have pleaded guilty to a charge of assault with intent to commit sexual violation. That carries a maximum penalty of three years imprisonment.

[2]      The Crown has also laid two further charges of assault with intent to commit sexual violation and those charges have been left in abeyance pending sentencing. The Crown now offers no evidence on this charges and I accordingly discharge you

on them pursuant to s 347 of the Crimes Act 1961,

[3]      The District Court declined to sentence you, notwithstanding the fact that the pleas  were  entered  in  that  Court.                   It  did  so  because  the  Crown  raised,  and  your counsel  realistically  accepted,  the  possibility  that  preventive  detention  should  be imposed upon you.

The facts

[4]      The facts that have given rise to the charges are contained in summaries of fact  and  relate  to  two  separate  incidents.   I record  that  you  take  no  issue  with  the summaries presented to the District Court.

The incident on 27 January 2006

[5]      The first incident occurred shortly after 10 pm on Friday 27  January 2006. The complainant in relation to the charges that arise from that incident was sitting at

a bus stop on Penrose Road in Penrose.  You approached her in your motor vehicle. You stopped and talked to her and offered her a lift into the City.  She agreed and got into your vehicle.

[6]      Rather than take her to the City as you had offered to do, you instead drove her to an industrial estate a short  distance  away. There  you  parked  in  an  empty driveway. Not surprisingly, the complainant became concerned for her safety. You told her, however, that you needed to urinate and that that was the reason why you

had stopped the vehicle.  You then left the vehicle but when you returned you did not get back into the driver’s seat.  Instead, you went to the passenger side of the vehicle where  the  complainant  was  sitting.   She  became  alarmed  at  this  and  immediately tried to call for help on her cellphone.  You then opened the passenger door, forced your body on top of her and grabbed the cellphone from her hands.   You threw it behind her.

[7]      You then pulled the seat  lever, thereby causing the seat to decline and  you started to kiss her.   Not surprisingly, she resisted these advances and tried to break free.   Despite her resistance  you held her down with one arm and with your other arm you removed her clothing, her trousers and underwear and also pulled off your own  trousers.         During  this,  the  complainant  was  able  to  regain  possession  of  her cellphone and she again tried to call the police.   When you saw this you grabbed it from her and threw it away.

[8]      By this  stage  the  complainant  was  screaming  for  help.   You  responded  by grabbing her neck in a violent manner and squeezing her throat so that she could not breathe.  You then forced her legs apart and raped her notwithstanding her cries and tearful requests that you get off her.

[9]      You then made her roll on her stomach.  She said, no and you then made her.

At that point you digitally penetrated her vagina.  At about this time the complainant saw  her  cellphone  and  again  reached  for  it.           You  then  got  into  the  driver’s  seat, started the vehicle and drove away from the driveway with the complainant still in the front seat.

[10]     Again she tried to call for emergency assistance. When you saw the phone in her hand, you stopped the vehicle, grabbed her by the throat and then squeezed her until she had great difficulty breathing. You pushed her down in the passenger seat and drove  a short distance away before stopping at another  driveway. There, you climbed on top of the complainant once again. You pulled her legs apart and licked

in and around her vagina.   You again grabbed her by the throat and squeezed her, almost to the point of unconsciousness.  You also inserted your fingers in her vagina

again and then proceeded to rape her on a second occasion.   On this occasion you ejaculated.

[11]     You then got off the victim, sat in the driver’s seat and demanded that she provide you with oral sex.   She refused, so you grabbed her head and forced it into your groin area.  By this stage the victim was fearing for her life and she eventually complied with your requests.

[12]     You then climbed on top of her in the passenger seat again, pulled her legs apart and inserted  your erect penis into her vagina and again ejaculated inside her. Again, you also demanded oral sex.

[13]     Eventually, this terrible ordeal came to an end and you started the vehicle and drove away.  You did not let the complainant go, however.  She managed to open the passenger door and escape whilst the vehicle was stopped.

[14]     This incident has given rise to all of the charges to which you pleaded guilty other than a single count of rape.

The incident on 31 March 2006

[15]     That charge follows an incident  that  occurred  just  two  months  later,  on  31

March  2006.   On  this  occasion  the  complainant,  who  I  add  was  a  separate complainant to the first complainant, was standing on Atkinson Avenue in Otahuhu. Once again you approached her in your vehicle.  You had a short conversation with her in which  you agreed to buy her some alcohol.   She got into your car willingly and you drove to a supermarket in Mt. Wellington, where you gave the complainant some money to buy alcohol.   She went inside, bought alcohol and then returned to the vehicle.

[16]     You then drove back towards Otahuhu where you parked in the Mt. Wellington commercial area and demanded that the complainant give you oral sex. She refused and then  you told her that you wanted to have sex.   She became very fearful of what might happen if she refused and was clearly scared that you would

hurt her if she did so. You then got on top of the complainant, who was still seated

in the passenger seat. You pulled her pants down and inserted your erect penis in her vagina. You ejaculated a short time later and then got off the complainant and drove away. On this occasion you let the complainant leave the vehicle at a bus depot.

Sentencing Act 2002

[17]     In  sentencing  you,  I  need  to  have  regard  to  the  purposes  and  principles contained in the Sentencing Act 2002.   Quite obviously the  circumstances of  your offending   mean   that   issues   of   denunciation   and   the   need   to   hold   you   fully accountable for your actions are to the fore.

[18]     As your counsel properly recognises, both of these incidents were appalling episodes in which you effectively took what  you  wanted  from vulnerable  women. Added to this is the aggravating factor that you approached the women and tricked at least one of them into getting into the vehicle by promising her that you would take her into the City. The way in which you approached these women has a predatory

air about it, and added to this is the fact that you were prepared to use quite serious violence,  particularly  in  relation  to  the  first  complainant. You are  lucky,  Mr Timbun, that she did not lose consciousness and die as a result of the fact that you strangled   her. Had   that   occurred,   you   would   be   facing   a   sentence   of   life imprisonment at this stage.

[19]     Obviously the sentence that the Court imposes must demonstrate that women who are out alone at night should not be subject to attacks like this on any basis at all, let alone the random basis on which these attacks occurred.

[20]     One  of  the  factors  that  I  am  required  to  take  into  account  is  the  extent  to which your offending has affected your victims.  I have the benefit of a detailed and, might I say, balanced victim impact statement from the complainant  in  the  first incident to which I have referred. I do not propose to read into the record what she says. It absolutely clear, however, that this episode has had a devastating effect on her. For a long time she was unable to leave her house. She now has no trust in other people and men in particular. Her confidence and self-esteem have been

absolutely shattered by what she endured at your hands.  I have no doubt that it will

be many, many years and a great deal of counselling before that complainant is able

to  put  that  terrible  episode  behind  her.           That  is  an  issue  that  must  have  some reflection on the sentence that the Court imposes.

[21]     The real issue in  this case is whether or  not  I should impose a sentence  of preventive  detention  on  you.                   You  are  eligible  for  that  because  you  have  now pleaded  guilty  to  two  separate  qualifying  offences  in  terms  of  the  preventive detention  legislation.   The  alternative,  of  course,  is  to  impose  a  finite  sentence  of imprisonment.

Starting point on finite sentence

[22]     In selecting an appropriate finite sentence, counsel were initially broadly in agreement with the starting point to be imposed. Counsel have referred me to a number of cases involving offending that could be described as broadly similar as yours: R v  Eagle  HC  Napier  CRI  2006-041-199 12 May 2006; R v Abdulhussein CA175/01 7 February 2002; and R v Apperley CA450/98 13 May 1999.

[23]     Counsel  for  the  Crown  submits  that  a  starting  point  of  16  to  17  years imprisonment  is  appropriate. In  his  written  submissions,  your  counsel  contended that a starting point of between 14 and 16 years imprisonment was warranted on the authorities.

[24]     During the hearing today,  your counsel advises me that you have instructed him  that  he is to  modify the  approach  that  he  is to  take  in this regard.   You  have instructed  him  that  he  should  contend  that  a  starting  point  of  around  12  years imprisonment  is  appropriate.   I  have  to  say,  and  I  think  your  counsel  realistically accepts, that that is completely untenable.   Your offending involved attacks on two separate victims at night, it involved violence, it involved sexual activity of different types, it involved preying on young and vulnerable victims.   I have no hesitation in rejecting  the  submission  that  a  starting  point  of  12  years  imprisonment  would  be appropriate.   That  would  be  manifestly  inadequate,  in  my  view,  to  meet  the objectives, purposes and principles contained in the Sentencing Act 2002.

[25]     Having  regard  to  the  authorities  to  which  counsel  have  referred  me,  I consider  that  an  appropriate  starting  point  in  the  event  that  a  finite  sentence  of imprisonment  was  to  be  imposed  is  one  of  16  years  nine  months  imprisonment. That, in my view, adequately reflects all of the aggravating factors to which I have referred.

Mitigating factors

[26]     You  are  entitled  to  a  discount  because  of  the  fact  that  you  pleaded  guilty, albeit at an extremely late stage.   Both guilty pleas were entered on the doorstep of the Court, as it were.  Both were entered virtually on the day that the trial was due to start.  As a result, both complainants believed right up until the last minute that they were going to have to give evidence and that they were likely to have to relive their ordeal  all  over  again.   For  that  reason  the  credit  that  can  be  given  for  your  guilty pleas must, necessarily, be limited.

[27]     In R v Hessell [2009] NZCA 450, however, the Court of Appeal has said that even very late guilty pleas must attract a discount in sexual cases because they mean that complainants will not need to give evidence. In your case, and in accordance with the principles referred to in Hessell, I propose to allow a discount of around ten per cent to reflect  your  guilty pleas.   This brings the starting point back  to one of 15 years imprisonment if a finite term is to be imposed.

Preventive detention

[28]     In  its  written  submissions  the  Crown  sought  a  sentence  of  preventive detention.

[29]     The Court has the power under s 87 of the Sentencing Act 2002 to impose the indefinite  sentence  of  preventive  detention  in  certain  circumstances. As  s  87(1) provides, the purpose of that sentence is to protect the community from those who pose a significant and on-going risk to the safety of its members.  The sentence can only, however, be applied where three criteria are satisfied.  These are:

a)        A person is convicted of a qualifying sexual or violent offence as that term is defined in sub-section 5.

b)The person was 18 years of age or over at the time of committing the offence; and

c)        The  Court  is  satisfied  that  the  person  is  likely  to  commit  another qualifying  sexual  or  violent  offence  if  the  person  is  released  at  the sentencing expiry date.

[30]     There is no dispute in this case that the first two criteria are satisfied.   You have committed a qualifying offence and you were over 18 years of age at the date that you did so.   The real issue that I need to consider is whether I can be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released, as you would be in the normal course of events, at the sentence expiry date.

[31]     A  complication  arises  in  this  context  because  you  are  not  a  New  Zealand citizen.  You were born and raised in Papua New Guinea.  Although you were in the process of applying for New Zealand residency at the time that you committed these offences, there is no prospect whatsoever that any application for residency will now be granted.  As a result, it is inevitable that you will be served with a removal order if that has not already occurred.  You will then be automatically deported when you complete your sentence.

[32]     That being the case, I do not see  how  I  can  reach  the  threshold  of  being satisfied that you are likely to commit another “qualifying” sexual or violent offence.

I reach that conclusion because a “qualifying” sexual or violent offence is one that is defined as qualifying in terms of the New Zealand legislation.  The reality is that you will  never  be  released  into  the  New  Zealand  community when  you  complete  your sentence.  Instead, you will be deported back to Papua New Guinea.  For that reason I do not consider that the community will be at  risk from  you committing another qualifying sexual or violent offence upon your release.

[33]     Had that not been the case, however,  I record that I have reached the view that  you  would  have  been  likely  to  commit  another  qualifying  sexual  or  violent offence if you were released into the New Zealand community.  I reach that view for several reasons.  The first of these stems from the cultural and social background in which you grew up.  It is clear from the material available to me that you grew up in what   would,   by  New   Zealand   standards,   be   described   as   a   highly  abnormal environment.   Your father practised polygamy and had three wives.   You were the eldest  of  15  children.   You  grew  up  in  an  environment  where  you  were  showered with privileges in your position as the eldest male child.  It appears that you got your way with virtually whatever you wanted.

[34]     The dynamics within the society in which  you  lived  were  also  unusual. Violence  appears  to  have  been  a  common  occurrence  and,  indeed,  you  appear  to have been involved in, or at least on the periphery of, inter-tribal warfare.

[35]     All of these factors, I have no doubt, left you with a deeply ingrained sense that you were entitled as a male to certain things as of right.  An available response

to you if you did not get your way was the ability to resort to violence.

[36]     If  your  account  of  your  past  achievements  is  to  be  believed,  however,  you have a degree of talent and no small measure of intelligence.   You report that you were  the  Dux  of  your  school  in  Papua  New  Guinea. This  led  you  to  obtain  a scholarship  to  study  in  New  Zealand  and  you  attended  Whangarei  Boys’  High School for the latter part of your high school education.  You say that you excelled at school  in  sport  and  you  were  also  well  above  average  academically.   You  were  a school prefect and this reflects the fact that the school appears to have accepted that you  were  a  person  of  ability  and  responsibility. You  then  attended  a  technical institute in Auckland, where you have passed several papers.  You are, you say, just five papers short of attaining a business degree.  You say that you hope to complete that degree in the future.

[37]     All of those factors suggest  that  there  are  many  positive  aspects  to  your character.  Unfortunately, however, the reports that I have received also suggest that

your  success  at  school  and  at  the  technical  institute  may  also  have  contributed  to your own feelings of confidence and self importance.

[38]     In  2001  you  pleaded  guilty to  a  charge  of  assaulting a  female  with  a  blunt instrument. The  summary  of  facts  that  you  accepted  when  you  pleaded  guilty recorded that the assault was on your partner at the time.  You had evidently seen her talking to another man in a park and took exception to that.  You then fought the man and sought to drag your partner away from the scene.   When she tried to get away from you, you took a piece of a wooden seat and struck her on the back with it when she  was  in  a  position  on  the  ground  trying  to  protect  herself. That,  of  itself,  is concerning.

[39]         What  is  even  more  concerning  is  that,  when  you  were  interviewed  by  a psychologist for the purposes of today’s sentence, you had in your own mind altered the  circumstances  of  that  offending  quite  significantly. In  short,  you  told  the psychologist that your partner had attacked you and that you had only hit her back in self-defence.  You said that you only pleaded guilty because your lawyer told you to.

[40]     Mr Timbun, the concern that that raises is that you are quite clearly prone to justify earlier events and to turn the facts around to suit your later view of them.   It demonstrates  that  you  have  no  insight  into  your  offending  and  that  you  are  not prepared to accept responsibility for it notwithstanding the fact that you might enter pleas of guilty.

[41]     That approach is also demonstrated graphically by the way in which you have approached the present offending.   You have entered pleas of guilty on the basis of summaries  of  fact  that  you  have  accepted  as  being  correct.  It  is  clear  from  the reports  that   I  have   received,  however,   is  that   you   do  not   fully  accept   your responsibility for your actions.  You say that both incidents occurred because of your belief that the women in question were prostitutes.  You say that you were aware that they were saying no and that they were manifesting an unwillingness to engage in sexual activity with you.  You say, however, that your understanding of the position is that that is how prostitutes act.   That they often say no when they are, in reality, consenting  to  having  sexual  activity.   Mr  Timbun,  if  that  is  truly  your  view,  it  is

completely  misguided.   It  reflects  the  most  graphic  lack  of  insight  into  your offending that one can imagine.

[42]     Also of concern is the fact that you appear to blame your wife for at least part

of  what  occurred  here. You  describe  how  your  relationship  with  your  wife disintegrated from 2004 after she had the first of  your two children.   Up until that point  you  say  that  you  and  your  wife  had  had  a  satisfactory  sexual  relationship. After  the  birth  of  your  first  child,  however,  this  deteriorated  because  of  her understandable tiredness due to her need to attend to the baby.  You say that this led to  a  breakdown  in  your  relationship.   This  caused  you  to  turn  to  alcohol  and  you began to drink heavily with your work colleagues.   You also, from the end of 2004 onward, began to seek the company of prostitutes in order to obtain sexual release. You say that this made you angry because you believe that your wife ought to have had  sexual  intercourse  with  you  on  a  more  frequent  basis.   Had  she  done  so,  you would not have needed to resort to alcohol and the use of prostitutes.

[43]     I detect therefore, in your comments to the psychologist and psychiatrist, an element of blame that you attribute to your wife for what has occurred here.   You believe that, had she been performing her role satisfactorily, you would never have needed to drink alcohol and the events for which you now appear for sentence would never have occurred.

[44]     You say, Mr Timbun, that you are now prepared to accept any assistance by way of rehabilitation that the prison authorities might be able to provide you with.  It seems to me, however, that you have a very long way to go before there can be any realistic prospect of rehabilitation.  You have deeply ingrained beliefs that need to be addressed before rehabilitation is a realistic prospect.

[45]     I also consider significant the fact that you offended twice in such a similar way and in such a short space of time. To me it demonstrates an alarming pattern of behavior, and one which would undoubtedly have escalated had you not been arrested. I think, on reflection Mr Timbun, you can count yourself fortunate that you were placed in custody not long after you were arrested following the second incident. Had that not been the case, there is a realistic prospect that you would have

committed other similar offending because of the stress that you say that you were under at that time.

[46]     Those factors are not going to go away unless they are addressed properly.  If you were released into the community from prison the likelihood is that other factors will  lead  to  you  becoming stressed. The  likelihood is also that, regardless  of  any courses you may have taken in prison, you will resort to alcohol again. Should that occur, I am left in little doubt that women will be in danger in the future.

[47]     For that reason, if  I thought that there was any prospect that  you would  be released  into  the  New  Zealand  community,  I would  undoubtedly have  reached  the view that the third qualifying factor was present.   As matters stand, however, I take the  view  that  there  is  no  realistic  prospect  of  your  being  released  into  the  New Zealand community.  For that reason I find that I cannot be satisfied that you would be likely to commit another qualifying sexual or violent offence if released into the community.

[48]     I  have  therefore  concluded  that  I  cannot  impose  a  sentence  of  preventive detention  upon  you.                  Had  that  not  been  the  case,  and  had  jurisdiction  existed,  I would,  for  the  reasons  that  I  have  already have  given,  undoubtedly have  imposed that sentence.  The reports that I have received from a psychiatrist and psychologist indicate that if alcohol is involved you have at least a moderate risk of reoffending. The  psychologist’s  report  is  to  the  effect  that  you  are  medium  to  high  risk  of reoffending based on one test that he has carried out and medium risk of reoffending is based on another.  I consider that your past history is the best indicator of all, and ordinarily I would have no doubt that the protection of the community would require you to receive a sentence of preventive detention.   That is the only realistic way in which  you  would  have  the  incentive  to  engage  in  such  rehabilitative  therapy  that may have been open to you.

[49]     I read with some concern that the fact that you are to be subject to a removal order means that the option for you to undertake rehabilitative therapy in prison may

be limited. I say that because, if the prison authorities here do not do something to assist in your rehabilitation, then all that  will  happen  is  that  you  will  offend  in

another jurisdiction.  I consider that this country owes it to your native country to at least  endeavour  to  address  the  issues  that  you  clearly  present  with.  I  therefore express the hope that rehabilitative therapy will be available to  you whilst you are incarcerated in New Zealand.

[50]     For the reasons that I have given I have concluded that it is not open to me to impose a sentence of preventive detention.   Instead I must impose a finite sentence upon you of the length that I have already indicated is appropriate.

Sentences

[51]     On each of the charges of rape you are sentenced to 15 years imprisonment. Those sentences are to be served concurrently.

[52]     On  the  charges  of  unlawful  sexual  connection  you  are  sentenced  to  eight years imprisonment.  Those sentences are to be served concurrently with each other and with the other sentences that I am imposing on you.

[53]     On  the  charge  of  assault  with  intent  to  commit  sexual  violation  you  are sentenced to one year’s imprisonment.   That, too, is to be served concurrently with all other sentences.

Minimum term of imprisonment

[54]     Your  counsel  accepts  that  it  is  open  to  me  to  impose  a  minimum  term  of imprisonment.     A   Court   may   impose   a   minimum   term   of   imprisonment   in circumstances  where  that  is  necessary  to  reflect  the  need  to  deter  you  and  others from  engaging  in  similar  conduct,  to  denounce  the  conduct  in  which  you  were involved,  to  protect  the  community  and  to  hold  you  fully  responsible  for  your actions.

[55]     In the present case there is no need to protect the community for the reasons that I have already given. You will remain out of the community until such time as you are deported at the end of your sentence. All of the other criteria, however, are clearly met in the present case. In the  ordinary  course  of  events  you  would  be

eligible for parole after serving one-third of your sentence.   You have already spent three and a half years in prison on remand, so you would be eligible for parole in 18 months.  That would, in my view, be completely inadequate to reflect the gravity of your offending and the devastating effects that it has had on your victims.

[56]     The  only  way  in  which  issues  of  deterrence,  denunciation  and  the  need  to hold you accountable can properly be addressed is by imposing a minimum term of imprisonment that renders you ineligible to apply for parole well past the one-third statutory eligibility.   Having said that, I accept the submission of your counsel that the minimum terms imposed in other cases need to be taken into account and that the Court should not automatically turn to the two-thirds maximum that the legislation permits.

[57]     For these reasons, I direct that you serve a minimum term of imprisonment of nine years on each of the rape charges to which you have pleaded guilty.

[58]     Stand down.

Lang J