R v Toa
[2014] NZHC 2279
•19 September 2014
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-3098 [2014] NZHC 2279
THE QUEEN
v
PIANUI TOA
Hearing: 19 September 2014 Appearances:
S Simmers for the Crown
P Hamlin for the PrisonerSentence:
19 September 2014
SENTENCING NOTES OF ELLIS J
Counsel/Solicitors:
P Hamlin, Barrister, Auckland
S Simmers, Meredith Connell, Auckland
R v TOA [2014] NZHC 2279 [19 September 2014]
[1] Mr Toa, you are for sentence today having pleaded guilty to one charge of sexual violation by rape. This offence carries a maximum penalty of 20 years’ imprisonment. Because of the nature of your offending, and before I get to your sentencing you this morning, I am required by law to warn you of the consequences of another serious violence conviction. You will also be given a written warning.
[2] So: if you are convicted of any one or more serious violent offences, other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.
The facts
[3] Before I get to your sentence I need to say a little bit about the facts of what you did and say a little bit about you personally as well. So that is what I am going to move on to now.
[4] At the time of offending the victim, E, was 14 years old. She suffers from a significant intellectual disability. It is said that she has the intellectual age of someone aged between five and seven years of age.
[5] You were in a relationship with E’s grandmother and you were living with them on and off.
[6] On 28 August 2013, E was admitted to hospital suffering from severe stomach pains. Hospital staff discovered that she was pregnant. She subsequently miscarried.
[7] Foetal material that was retained from the miscarriage and sent to the ESR for analysis gave rise to results from DNA testing that showed you were the father of her child. The date of conception was put at some time between 1 June 2013 and 18 July
2013.
[8] At first you said that you did not have sexual relations with E and could not explain the results of the DNA testing. But later you pleaded guilty to this one charge of sexual violation by rape. You maintain that you only had sex with E once.
Personal circumstances
[9] In terms of your personal circumstances, I have read the pre-sentence report and the psychological assessment report of Barry Kirker, whose assessment of you was organised by Mr Hamlin.
[10] You are now 60 years old. You were born and grew up in the Cook Islands. Your biological parents both died before you were three years old, and you were subsequently adopted. Your upbringing featured domestic violence. Your adoptive father physically abused you regularly and you were often forced to miss school because of the injuries you suffered.
[11] You left home at the age of 14 to work on boats. You subsequently had a child with a woman in Samoa, but you have little to do with her.
[12] You moved to New Zealand when you were 40. For the last 20 years you have worked as a specialist steel bender for a building supply company. The company’s managing director has written a letter describing you as diligent and well liked by your peers. He says that your skill, attitude and character are all exemplary.
[13] You also provide financial support to your sister, who is a single mother in
Wellington, by paying her mortgage.
[14] You have been in a de facto relationship with E’s grandmother for between seven and eight years. She is ill with limited mobility and limited ability to support herself financially. You help her in all sorts of ways by cooking, cleaning, and generally looking after her.
[15] You have provided conflicting accounts of your offending. It appears that you told the Probation Officer that sex was initiated by E after you got out of the shower and were dressed only in a towel. But you told the psychologist that the
offending occurred when she came out of the shower naked and began kissing and touching you. In both accounts you said that you initially rebuffed her advances but then “gave in”. You say you thought you were doing her a favour and giving her what she wanted. As I have said, you maintain that you only had sex with her on one occasion.
[16] You say you are sorry for what you did and recognise how bad it was. You have expressed a willingness to have appropriate treatment to help ensure that you don’t do something like this again. And I have also read the letter that you have written to the Court about those things this morning.
[17] The psychologist says that you have distorted reality to justify your behaviour, and that you spoke of E as though she were a seductive young woman rather than an intellectually disabled child. He says that certain aspects of your personality and circumstances meant that you saw an opportunity for sex and then misread or distorted the cues that she was sending. In his view you would have had no qualms about imposing yourself aggressively upon her due to a sense of entitlement, stemming from your own difficulties as a child and your belief that you had been deprived of sexual conduct. But I also note that the psychologist says that the initial blame that you tried to attribute to E is very much part of the process that offenders like you go through. Mr Hamlin submitted to me this morning that you have now passed through that stage and I must say I am inclined to accept that.
[18] In the end, the Probation Officer and psychologist assessed the risk of you re- offending as low to moderate.
[19] The Probation Officer, inevitably, recommends a sentence of imprisonment. The psychologist considers that you are a suitable candidate for an intensive group treatment programme for sex offenders and he has recommended a programme in that regard.
Victim impact
[20] In terms of the impact on E, your victim, her great-aunt has filed a victim impact statement on her behalf. She has been E’s fulltime career for the past 12 months.
[21] She says that she believes that E is completely unaware of what has happened to her. She says that as far as she knows, there have been no long term physical or psychological effects. E occasionally talks about you and her grandmother, but she does not talk about what happened to her.
[22] [Her Aunt] believes that when E miscarried last year, she thought that she had eaten too much Weetbix or was suffering indigestion. She did not understand why she was in hospital. I suppose that is a mercy in some ways, although it also serves to emphasise how great the advantage was, that you took of her.
Purposes and principles of sentencing
[23] When sentencing you today, I have to take into account what are called the principles and purposes of sentencing.1 I need in particular to hold you accountable for the harm done to E, to promote in you a sense of responsibility for that harm, and to denounce your behaviour. The need to assist in your rehabilitation and reintegration, however, is also very relevant in your case.
[24] I must also consider the gravity of your offending, any information that I have about the effect of the offending on the victim and the desirability of consistency with sentences imposed on other similar offenders who committed similar offences in similar circumstances. I must also impose the least restrictive
sentence that is appropriate in the circumstances.
1 Sentencing Act 2002, s 7.
Starting point
[25] I now need to set the starting point for your sentence, which is the sentence that would be imposed based on the seriousness of your offending, but excluding factors personal to you, which I will come to later.
[26] There are a number of things that make what you did very serious. The first is E’s vulnerability. She was a 14 year old girl and you were a 59 year old man. She was even more vulnerable because of her intellectual disability. She is completely dependent on the adults in her life.
[27] The second thing is the abuse of trust involved in what you did. You were part of E’s family and played a care-giving role. You were supposed to be looking after her, not sexually violating, her.
[28] The third thing that makes what you did more serious is the harm done to the victim. Although she is seemingly unaware of it, she did suffer significant physical harm because she was hospitalised and had a miscarriage.
[29] The Crown and defence agree that because of these aggravating factors, this offending falls within the second band identified by the Court of Appeal for offending of this kind.2 This means that I must impose a starting point of between seven and 13 years’ imprisonment.
[30] The Crown said that the starting point should be in the range of 11 to 13 years’ imprisonment. It referred me to another case where the Judge adopted a starting point of 11 years’ and three months’ imprisonment for the rape of a 13 year old girl with an intellectual disability.3 But beyond the similarity between the two victims, I do not think it is particularly like your case. There, the offender was a stranger who had been invited into her home by her parents. The offender was also charged with indecent assault and two counts of sexual violation and had previous
relevant convictions and after he raped the victim, he threatened to kill her if she told
2 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
3 R v Hetherington [2013] NZHC 3393.
anyone. And the long term effect on the victim also appears to have been much more obvious.
[31] I have considered other cases involving rape committed against vulnerable girls, in particular intellectually disabled girls and women.4 Bearing in mind the starting points adopted in those cases, and taking into account the aggravating features present that I have already talked about, I consider that a starting point of 10 years is appropriate.
Aggravating and mitigating personal factors
[32] In terms of personal factors, you have three previous convictions, none of which are relevant to this offending, so I do not propose to increase the starting point for that.
[33] Mr Hamlin has argued for a discount for personal matters. I agree with him that you are somebody who works hard and looks after others, who depend on you. I tend to agree with Mr Hamlin as well that you are a good man who has made a terrible mistake and I note what he told me this morning about the steps that you are already taking in prison to make sure that you do rehabilitate yourself and make you an even better man when you are released from prison.
Guilty plea
[34] Also relevant is that you pleaded guilty at a relatively early stage. The Crown agrees that you are entitled to a discount of around 20 per cent for that. So in total I am prepared to reduce the starting point that I am imposing by three years for the matters that I have just mentioned, those personal matters.
[35] Now although Ms Simmers has asked me to impose a minimum non-parole period as well, I do not consider that is necessary in your case. So that is not
something I am going to do today.
4 R v Templer CA281/99, 30 September 1999; R v Sanday CA146/99, 29 July 1999; R v R
CA243/04, 21 October 2004; R v Langman HC Whangarei CRI-2006-088-2803, 28 August
2007; R v Langman CA692/07, 13 November 2008; and E (CA799/2012) v R [2013] NZCA 678.
Result
[36] Mr Toa, if you could please stand.
[37] On the single charge of sexual violation by rape, I sentence you to seven
years’ imprisonment.
[38] Please stand down.
Rebecca Ellis J