R v Tipene

[2016] NZHC 2024

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 HAMILTON REGISTRY

CRI-2015-019-006295 [2016] NZHC 2024

THE QUEEN

v

TE ANGA WIREMU TIPENE

Hearing:	26 August 2016
Counsel:	J Foster for Crown S Green for Mr Tipene
Sentence:	26 August 2016

SENTENCE OF DUFFY J

Solicitors:

Crown Solicitor, Hamilton

S K Green, Barrister, Hamilton

R v TIPENE [2016] NZHC 2024 [26 August 2016]

Offences

[1]      Mr Tipene, you have pleaded guilty to one count of burglary,1 two counts of threatening to do grievous bodily harm,2 two counts of sexual violation by unlawful sexual connection,3 one count of sexual violation by rape,4 and one count of indecent assault.5   The most serious offence, sexual violation, carries a maximum sentence of

20 years’ imprisonment.6

[2]      You were initially charged with one further count of sexual violation by unlawful sexual connection.  The Crown has agreed that the acts which gave rise to that charge are adequately represented by the other charges and that no further plea is required.  I therefore dismiss that charge.7

Factual background

[3]      In the early hours of the morning on 6 November 2015, you were at the home of an associate in Hamilton.  The two of you had been out drinking and had recently arrived home.  Your associate went into his room and went to bed.  However, you left the house and made your way to the neighbouring property.   You entered the property through a set of French doors which had been left unlocked.  Once inside the house, you made your way to the bedroom of the first victim, BE, and pushed open the door.  She was lying in bed, but was awake and yelled at you to get out of her room and leave the house. You told her to be quiet and that you would kill her if she spoke to the Police about your presence in the house.

[4]      You asked BE if she had ever had sex before and then you asked her to perform oral sex on you.  She told you that she did not want to do it and asked you to leave, but you ignored her.  You then removed your trousers and underwear.  You

pulled BE’s hair, forced her head into position over your penis and forced your penis

1      Crimes Act 1961, s 231(1)(a).

2      Crimes Act, s 306(1)(a).

3      Crimes Act, s 128(1)(b).

4      Crimes Act, s 128(1)(a).

5      Crimes Act, s 135.

6      Crimes Act, s 128B.

7      Criminal Procedure Act 2011, s 147.

into her mouth.  You also touched her breasts.  You then unbuttoned her sleeping suit.  You removed one of her legs from the sleeping suit and raped her.  She yelled out that you were hurting her and asked you again to stop, but you continued.  You told her that you would leave the house once you had ejaculated.  BE was desperate for you to leave the house.  She performed oral sex upon you a second time under significant duress.   She asked you again to leave, but you replied that you would only leave once she had gone to sleep.   She pretended to go to sleep so that you would leave the room.  Once you had left, she hid in the bathroom.

[5]      Meanwhile, you made your way to a second bedroom, where the second victim, HE, was awake and scared.  She had awoken to the noise of your assault on BE and had contacted family members on Facebook to tell them that a stranger was in the house and asking them to call the Police.  You entered her room.  She told you to get out but, again, you told her that you would only leave if she could make you ejaculate.   You removed your pants.   You also unbuttoned her sleeping suit and fondled her breasts.  You then forced HE to perform oral sex upon you.  During the attack you held her hair and told her what to do.  You then ejaculated in her mouth and on her face. After you had finished, you told HE that you would hurt her and her sister if she ever told anyone about what you had done. You specifically told her that she was not to tell the Police or her mother about your actions.

[6]      The Police arrived shortly after you had left the house.  Unfortunately they could not arrive in time to save the victims from you.  However, your fingerprints were subsequently located at the house, as well as your wristwatch.  When spoken to by Police you initially claimed that you had never been inside the house and had no memory of ever leaving your associate’s house.   However, you have subsequently pleaded guilty to seven out of eight charges.  You pleaded not guilty to one further charge of sexual violation by unlawful sexual  connection, which has  now been dismissed.   But you apparently accepted that your actions in that respect will be taken into account as an aggravating circumstance at sentencing.

Victim impact statements

[7]      The Court has received victim impact statements from both BE and HE, which make for harrowing reading.  They both have autistic spectrum disorder and an intellectual disability, which can make the world an intimidating and at times, an overwhelming place for them.   Notwithstanding that, in 2015 they made the courageous decision to move from their home in the Coromandel to Hamilton, in order to access better assistance and to enable them to participate in a wider variety of community activities including work and study.  Both BE and HE described their home as a safe place where they could retreat from the hubbub of the outside world and relax in each other’s company.

[8]      Your actions on the night of 6 November 2015 were a brutal invasion of their safe place.  Both HE and BE were left in significant physical pain as a result of your assault.  BE in particular suffered bleeding and abrasions which took a long time to heal.  BE and HE have both suffered significant psychological trauma.  HE describes her terror at hearing your assault on BE in the room next door before you came into her room; and her fear that you might one day act upon your threats to kill them because they were brave enough to seek assistance from the Police and family members.

[9]      BE and HE are receiving counselling to try and understand and cope with the effects of your offending.  However, they have both expressed sadness and fear that your assaults may have permanently affected their ability to form relationships with men and that your abuse may be the only sexual activity they ever experience.  They have said how badly they feel when they see you in court but they say they are trying to move forward as they do not want your actions to define their lives.

Personal circumstances

[10]     You are 22 years old.  You have one child from a previous relationship but were single at the time of the offending, living with your mother and her partner in Te Aroha.  You have nine previous convictions for various offences.  However, none of your previous offending has been particularly serious, which is reflected in the fact that you have never been subject to a sentence of imprisonment.

[11]     The pre-sentence report writer records that you presented as an intelligent young man who was polite and co-operative throughout the interview.  Your mother described you as a loving, giving, kind and generous person.  However, you appear to have significant problems with alcohol and possibly other drugs.  You state that in recent times you have been a heavy drinker and that you saw drinking as a means of escaping your boredom and depression.   On at least one previous occasion, your drinking has caused you to black out.

[12]     When asked about the night of the offending, you confirmed that you were significantly intoxicated.  You claim to have no memory of the actual offending and deny having any previous contact or knowledge of the victims.  You have expressed regret and sorrow both for your actions and for the life-long effects that your actions will have upon the victims.

[13]     The report writer has identified your offending-related factors as being your attitudes, alcohol use and offending-related sexual arousal.  In particular, she writes that your alcohol use is deeply concerning and indicates an inability to appropriately deal with your emotional problems in a constructive way.   She suggests that this highlights your poor problem solving skills and a misguided sense of entitlement. The report-writer further notes that your willingness to apportion the blame for your actions on your alcohol use is disturbing.  I am not so sure if that is the case.  I think, myself, that someone of your young age, who is otherwise described as a loving, kind and generous person, must be struggling yourself with what you did that night. Overall, the pre-sentence report writer describes you as being a high risk of re- offending and a high risk of harm.

Crown submissions

[14]     The Crown submits that your offending against BE should attract a starting point of between 12 to 13 years’ imprisonment.  The Crown identifies a number of aggravating  features  of  the  offending,  including  premeditation,  home  invasion, threats of violence, the vulnerability of the victim, the degree of harm caused to the victim and the degree of violation. The Crown then submits that an uplift of between two to four years is justified to reflect your offending against HE, resulting in an

overall starting point of between 15 to 16 years’ imprisonment.   The Crown does acknowledge that you receive some credit for a guilty plea, which would reduce the sentence by some margin.   The Crown asks me to impose a minimum period of imprisonment of 50%.

Defence submissions

[15]     Ms Green, on your behalf, emphasises that your behaviour was totally out of character  for  you.    Both  you  and  your  family,  she  submits,  are  struggling  to understand and come to terms with what you have done.  She acknowledges that this was serious offending which demonstrates a number of aggravating features.   She therefore  submits  that  an  overall  starting  point  in  the  range  of  13  years’ imprisonment would be appropriate.  She seeks a discount of 30 per cent to reflect your guilty plea and remorse.

Purposes and principles of sentencing

[16]     In  sentencing  you  today,  Mr  Tipene,  I  bear  in  mind  the  purposes  and principles of sentencing that are set out in the Sentencing Act 2002.8   In particular, I must impose a sentence which holds you accountable for the harm done to the victims and the community as a result of your offending and that promotes in you a sense of responsibility for, and an acknowledgement of, that harm.   The sentence must be adequate to denounce your conduct; to deter others from committing this type of offence; and to protect the community.

[17]     I must also impose a sentence which takes into account the gravity of your offending and the seriousness of this offending in comparison with other types of offending.   I must consider the sentences that have been imposed in respect of similar offenders committing similar offences in similar circumstances.  I must also consider the effect of your offending on the victims.  Nonetheless, I must impose the least restrictive outcome that is appropriate in the circumstances, although I think you must realise, Mr Tipene, that I have no option other than to sentence you to a

lengthy sentence of imprisonment.

8      Sentencing Act 2002, ss 7 and 8.

Discussion

[18]     I propose to set a starting point for the offending based upon your offending against BE in accordance with the sentencing guidelines established by the Court of Appeal in R v AM.9   The starting point will reflect the additional offending, as I see those actions as being aggravating features of the sexual violence offending, which therefore impacts upon the choice of starting point for this offending.   I will then determine an appropriate uplift to reflect your further offending against HE to reach a global starting point.  At that stage I will consider any aggravating and mitigating features relating to you personally, which might justify an alteration to the starting

point, as well as your guilty plea.

[19]     There are a number of aggravating features present in your offending against BE, each of which must be taken into account in determining an appropriate starting point:

[20]     Premeditation:10  I accept the Crown’s submission that there is some element  of pre-meditation  in  respect  of the offending  against  BE. However,  I also  accept  that  you  did  not  engage in  any extensive planning prior to your offending.

[21]     Home invasion:11  any intrusion into a person’s home is viewed as a significant aggravating factor at sentencing.

[22]     Violence or threats of violence:12  rape is an inherently violent act.  I accept that in this case you did not inflict any additional violence, in terms of physical violence, upon the victims, nor did you bring a weapon  into  the house  with  you.    However,  your convictions  for threatening to kill demonstrate that you deliberately made threats of violence in order to coerce BE and HE into silence.   Those threats have caused them to fear for their safety, even several months after the

event.

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

10 At [37].

11     At [41]; Sentencing Act, s 9(1)(b).

12 At [39].

[23]     Vulnerable victim:13  the victim in this case has an autism spectrum disorder and an intellectual disability.   It is not clear to me whether you had prior knowledge of BE’s disability and for that  reason  I consider  that  this  factor  bears  less  weight  in  the  present  case compared to cases where, for example, an offender has deliberately chosen to offend against an elderly woman.   Nonetheless this is an aggravating feature of your offending.

[24]     Harm  to   the  victim:14    your  offending  against   BE   caused  her significant and long-lasting injuries, both physical and psychological.

[25]     Scale of the offending:15 your offending against BE involved multiple acts of sexual violation. At one stage, after raping BE, you forced her to perform oral sex upon you.  This was a particularly degrading act which increases the culpability of the offending.

[26]     There are no mitigating features of your offending.

[27]     Taking into account the aggravating features set out above and by comparison to other similar cases,16 I consider that your offending against BE only falls towards the upper end of Band 2 and justifies a starting point in the region of 10 years imprisonment.   The starting point that I have adopted reflects the fact the sexual violation offences occurred following your unlawful entry into the victim’s house and the threats of violence you made towards her.   Accordingly there will be no

uplift to reflect the burglary and threatening harm offences.

[28]     I must then consider an appropriate uplift to reflect your additional offending against HE. This later offending shares many of the same aggravating features as the offending against BE.   However, I consider there are two factors which warrant

particular mention:

13 At [42].

14 At [44].

15     At [47] – [49].

16     R v Funaki [2015] NZHC 1658; R v Tareha [2015] NZHC 676; R v Lin [2013] NZHC 2837; R v Finau

[2012] NZHC 3027; R v Olver [2012] NZHC 706; R v Narayan HC Auckland CRI-2009-057-2305, 9 July

2010; R v Waretini HC Hamilton CRI-2009-019-8137, 9 July 2010; R v Cooper HC Napier CRI-2009-041-

3842, 9 May 2011; R v V (CA442/94), 23 May 1995.

[29]     Premeditation:17    I  have  already  noted  that  your  conviction  for burglary indicates an element of premeditation in your offending against both women.  However, I consider that this element is present to a greater extent in respect of your offending against HE.  Having already offended against BE, you made a conscious and calculated choice  to  continue  your  offending  against  another  woman  in  the house.

[30]     Scale of the offending:18  HE was forced to listen in terror while you brutalised her sister and then you came to her room. You forced her to put your penis in her mouth and then ejaculated over her face, which was particularly degrading.

[31]     Your offending against HE was less extensive than that against BE and for that reason, and that reason alone, your culpability in respect of HE is slightly lower. The fact that you penetrated HE’s mouth rather than her vagina is not a mitigating feature of the offending.19     Taking into account the aggravating features of your offending, I consider that an uplift of four years is justified.  That brings the total starting point to one of 14 years’ imprisonment.

[32]     I  now  turn  to  consider  whether  there  are  any  aggravating  or  mitigating features relating to you personally which might justify a further uplift or reduction to that starting point.  I do not think that there are any such features present in this case. Although you have some previous convictions, they are relatively minor and are not relevant to the type of offending you are being sentenced for today.   They do, however, prevent  you from accessing any reduction in the starting point on the ground of previous good character.

[33]     Ms  Green  submitted  that  you  might  receive  a  reduction  to  reflect  your

remorse for your actions.  The Sentencing Act provides that “any remorse shown by the offender” is a mitigating factor at sentencing.20   This is partially reflected by the

17     R v AM, above n 9, at [37].

18     At [47] – [49].

19 At [76].

20     Sentencing Act, s 9(2)(f).

guilty plea discount, which will be relatively substantial in your case.  As a general rule, an additional reduction will only be available where the offender has taken practical steps to demonstrate his or her remorse.21     I understand that you were willing to undertake a restorative justice process with the victims.   However, that process did not move forward and until Ms Green read out excerpts from your letter to the Court today you have not taken any other steps to show your remorse.  I do not consider that an additional discount is appropriate in this case.

[34]     Finally, I must consider your guilty plea.   The offending took place on 6

November 2015 and you were arrested a few days later.  You pleaded guilty on 30

June 2016, well after your arrest but before trial.   I accept that your counsel was seeking a psychiatric evaluation for you and therefore there was a legitimate reason for at least some of that delay.   With someone of your age and with the alcohol abuse, it seems to me it was a responsible thing for Ms Green to do.

[35]     Furthermore, notwithstanding the delay, by pleading guilty you have spared the victims from giving evidence at your trial, which would have been a traumatic experience for them.   I consider therefore that a discount of around 20 per cent is warranted to reflect your guilty pleas, which results in a final sentence of 11 years’ imprisonment.

Minimum period of imprisonment

[36]     I must now turn to consider whether I should impose a minimum period of imprisonment.

[37]     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 2002.22    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

21     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

harm done, denounce the conduct, deter the offender or others, or protect the community.23

[38]     I  acknowledge  that   your  offending  is  serious  offending,  Mr  Tipene. However, I consider that your culpability is adequately reflected in the sentence which will I will impose upon you.  You do not have any previous convictions for offences of this type which might otherwise indicate an especial need to protect the community from you. You are young, you have never been to prison before.  I do not consider that a minimum period of imprisonment is necessary in your case.

Sentence

[39]     Mr Tipene, please stand.

[40]     On charges 4, 5 and 6, being the charges of sexual violation by rape and sexual  violation  by unlawful  sexual  connection,  you  are sentenced  to  11  years’ imprisonment.

[41]     On charge 1, being the charge of burglary, you are sentenced to 5 years’

imprisonment.

[42]     On charges 2 and 8, being the charges of threatening to do grievous bodily

harm, you are sentenced to 3 years’ imprisonment.

[43]     On charge 7, being the charge of indecent assault, you are sentenced to 2

years’ imprisonment.

[44]     All sentences are to be served concurrently, which means the longest term of imprisonment will be the sentence of 11 years.  Please stand down.