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…

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 Tipene

Details

AGLC: R v Tipene [2016] NZHC 2024
Case: [2016] NZHC 2024
Decision Date: 26 August 2016

CaseChat Overview and Summary

Te Anga Wiremu Tipene was convicted of seven counts of serious sexual violence and one count of burglary. The High Court was required to determine the appropriate sentence for the crimes, which involved the brutal invasion of two victims’ homes and the subsequent sexual assault of the victims. The court had to consider the purposes and principles of sentencing, including holding the offender accountable, denouncing the conduct, deterring others, and protecting the community. The court also had to weigh aggravating factors such as premeditation, home invasion, threats of violence, and the vulnerability of the victims, as well as any mitigating factors such as remorse and a guilty plea.

The court determined that the starting point for the offending against the first victim was towards the upper end of Band 2, justifying a starting point in the region of 10 years' imprisonment. The court then considered an appropriate uplift to reflect the additional offending against the second victim, resulting in a total starting point of 14 years' imprisonment. The court found no aggravating or mitigating features relating to the offender personally that would justify a further uplift or reduction to that starting point. However, the court considered the offender's guilty plea, which resulted in a discount of around 20 per cent, leading to a final sentence of 11 years' imprisonment. The court determined that a minimum period of imprisonment was not necessary in this case.

The final orders of the court were that the offender was sentenced to 11 years' imprisonment for charges of sexual violation by rape and sexual violation by unlawful sexual connection, 5 years' imprisonment for the charge of burglary, and 3 years' imprisonment for the charges of threatening to do grievous bodily harm. All sentences were to be served concurrently, with the longest term of imprisonment being the sentence of 11 years.

Orders