R v Tonihi HC Christchurch CRI-2010-009-017567

[2011] NZHC 765

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-009-017567

REGINA

v

TONY SHANE TONIHI

(Heard at Ashburton) Appearances: S Carter for Crown

R G Glover for Prisoner

Judgment:      6 July 2011

SENTENCE OF HON JUSTICE FRENCH

[1]      Tony Shane Tonihi, following pleas of guilty you appear for sentence this morning on three counts:

(a)       sexual violation by rape;

(b)      sexual violation by unlawful sexual connection;

(c)       injuring with intent to cause grievous bodily harm.

R V TONIHI HC CHCH CRI-2010-009-017567 6 July 2011

[2]      The key issue I have to decide today is whether you should be sentenced to a finite term of imprisonment, by which I mean a term of imprisonment that has a specified end date, or whether the sentence should be one of preventive detention.

[3]      Preventive detention is one of the most serious punishments that can be imposed.  It is imprisonment for an indefinite time without any expiry date specified. A prisoner‟s release is entirely at the discretion of the parole board.  Further, even when the prisoner is released, they are subject to recall to prison for the rest of their life.

Facts of the offending

[4]      The victim in all three counts was a 20 year old woman.   On 28 November

2010 she was walking home from work in the early hours of the morning.  You saw her, a complete stranger, and started following her before suddenly grabbing her from behind, putting your hand over her mouth and pulling her into the front yard of a residential property. You told her not to say anything or you would kill her.

[5]      You dragged her into the garden and forced her face into the ground.  You removed her underwear and pulled her legs apart, saying „If you scream I will stab you, bitch‟.  You then raped her, both vaginally and anally.  You also placed your fingers into her vagina and anus several times.   When she begged  you to stop because it was hurting so much, you told her it was supposed to hurt and to shut the fuck up because you were not done yet.

[6]      The victim tried to resist, and during the struggle you repeatedly struck her around the head and also bit her thumb. You then placed your hands around her neck and squeezed tightly, to the point where she temporarily lost consciousness.

[7]      Fortunately, the occupier of the property heard screaming and came out to investigate.   He pulled you off the victim and you ran away, taking the victim‟s cellphone with you.  You later returned to retrieve your wallet and were found by police.

[8]      The victim estimates the whole ordeal lasted some 30 minutes.

[9]      You pleaded guilty at the earliest possible opportunity (in December 2010)

and you have received a three strikes warning.

Reports

[10]     I have read the victim impact report.  You subjected this woman to a brutal and terrifying attack, during the course of which she thought she was going to die. She suffered injuries to her vagina and anus, as well as numerous lacerations and bruising all over her body.  Her face was so bruised and swollen it took two weeks for the swelling to subside, while the injury to the thumb took six weeks to heal and has left scarring.

[11]     As is only to be expected, the ordeal has also deeply affected her emotional wellbeing and sense of personal security.   She suffers from nightmares which at times have actually made her physically ill.  She feels anxious whenever she is in public and is distrustful of others.   Not a day goes by without her thinking about what happened.

[12]     In addition to the victim impact report, I have also read the pre-sentence report and three medical reports.

[13]     Two of the medical reports are from the Court-appointed health assessors, both psychologists, Drs Galvin and Joughin, and the third is from a psychiatrist whom you instructed through Mr Glover, Dr Chaplow.   I wish to record my appreciation for the assistance the report writers have provided the Court.

[14]     The reports make for very sad and disturbing reading. As Mr Glover submits, they paint a picture of a seriously damaged person.

[15]     You had a most unhappy childhood.   You lived in a violent and abusive household, had a drunken father, and were sexually abused yourself at the age of four.  By the time you were 15 you were binge drinking, you had been expelled from

school and you were appearing in the Youth Court.   You were also socialising at gang houses where you witnessed significant violence towards women, general disrespect and denigration, as well as sexual violence including pack rape.

[16]     You have over 40 convictions, having offended steadily since first appearing in the Youth Court back in 1984 for burglary. You are now 42.

[17]     Your past offences have included general offences such as obstructing the police, unlawfully getting into a motor vehicle, supplying cannabis and failing to report to a work centre.  Significantly, they also include seven previous convictions for  assault,  mostly against  women  with  whom  you  were  in  a  relationship,  and including one assault on a seven year old stepchild.

[18]     Of particular concern is the fact that this current offending occurred within only six weeks of your being released on parole from a five year, three month term of imprisonment imposed for sexual offending against a 19 year old prostitute in

2005.  On that occasion you used violence, restraint and blows to the head to coerce the victim into performing oral sex without a condom, having announced you had no money to pay for her services.   That is your only previous conviction for sexual offending as such, although an assault conviction in 1996 occurred in an almost identical context, involving as it did a prostitute who refused to give you sexual services.

[19]     You admitted to Dr Joughin that, had the 1996 victim not managed to escape, it is likely you would have raped her too.

[20]     According to Dr Galvin, the interviews after these older offences revealed significant hostility and dismissiveness towards women.

[21]     As regards the current offending, you have told the report writers of a chain of stressful events, including the recovered memory of the sexual abuse you yourself suffered as a child. These events left you feeling angry and frustrated.

[22]     On the day itself you had used cannabis and been drinking since 10 o‟clock in the morning, following which you became involved in a fight.  When you saw the victim you say you were full of hate and anger and thought then of raping her.  You told the probation officer it was all about power and control and that at the time you did not care about anyone or the consequences of what you were doing.  It seems you do not accept that the violence added to your sexual arousal.   However, your conduct and the statements you made to  your victim during the attack strongly suggest otherwise.

[23]     In Dr Joughin‟s opinion, your current offending has been precipitated by your rapidly escalating desire for sex and related entitlement beliefs, by the presence of a victim whose rights were not considered by you, by your distorted belief that you required sex and could not cope without it, by your desire to alleviate negative emotions,  low  mood,  and  by  your  fantasies  regarding  a  female  friend.    Your offending  was  further  precipitated  by  the  disinhibiting  effects  of  alcohol  and cannabis abuse.

[24]     Dr Joughin goes on to say at paragraphs 54 and 55:

Mr Tonihi‟s sexual offending over time appears to have been reinforced and maintained by the gratification of his sexual desire and need for control over others, by the function of sex as an effective mood management strategy, by his  perceived  high  sex  drive  and  associated  need  for  immediate  sexual release, by his sadistic sexual interests, and by his distorted beliefs regarding women as unworthy of respect and as sexual objects.   Mr Tonihi‟s sexual offending is also strongly maintained by the entrenched association between sex and violence, such that he appears to require an increasing level of violence to achieve sexual gratification.

Significantly, Mr Tonihi‟s sexual offending appears further maintained by personality traits of grandiosity, deceitfulness, a lack of remorse or empathy, impulsivity, a lack of future goals, irresponsibility, and the presence of a significant history of both adolescent and adult antisocial behaviour.

[25]     Similar sentiments are to be found in all the other reports.

[26]     Mr Glover points to the seven-year period of your marriage and the fact that during that period there was no offending.   Mr Glover says that shows that in the right environment you are capable of normal behaviour.

[27]     However, outside that period there is no doubt that your relationships with women have been characterised by an uncontrollable desire for sex, normalised use of control strategies over partners, beliefs of entitlement regardless of the rights of your victims, an entrenched association between sexual gratification and violence, and a tendency to blame your actions on your own victimhood.

Sentencing analysis

[28]     I turn now to explain the sentencing decisions that I have to make today.

[29]     First I have to be guided by what are called the principles and purposes of sentencing, and they are set out in an Act of Parliament called the Sentencing Act

2002.  In terms of the purposes of sentencing, there is a need to hold you accountable for the harm you have done, and to promote a sense of responsibility in you for that harm.    I have  to  provide  for  the  interests  of  the  victim,  and  on  behalf  of  the community generally I must denounce what you have done.  By that I mean I am required to express society‟s total rejection of your conduct.  I also am required to reflect the need to deter you and others from committing similar offences. Importantly, there is also a requirement to protect the community, and the need to help you change

[30]     I also must have regard to what are called the principles of sentences, for example the seriousness of this offending, the degree of blameworthiness, and the need to be consistent with other cases that are like this one.

[31]     Importantly, I am also under a duty to impose the least restrictive outcome appropriate in the circumstances.

[32]     As I have already said, the key issue I have to decide today is whether it is appropriate to impose a sentence of preventive detention upon you to protect the public, or whether a fixed term sentence will suffice, as Mr Glover advocates on your behalf.

[33]     I turn first to consider the sentencing range that would apply for a fixed term sentence, before I go on to look at preventive detention.

[34]     Sentencing for sexual violation is governed by a Court of Appeal decision.1

That decision sets out bands of offending and identifies what are called culpability factors to be taken into account in determining which band an offender falls into.

[35]     I identify the following culpability factors in your case:

(i)       A degree of pre-meditation which I assess at a moderate level.

Although I accept that you did not set out that night to rape someone, your behaviour once you saw the victim was nevertheless predatory.  You followed her for two blocks and have admitted that as you did so you were assessing potential properties to drag her into.  At one point you crossed the road to the other side to allay any fears she might have been having, before crossing back over again and then grabbing her.

(ii)The  associated  violence  which,  despite  the  absence  of  a weapon, I consider was high.

(iii)     The degree of violation, which I assess as moderate to high.

(iv)The level of harm to the victim beyond that inherent in any act of sexual violation, which I assess on the facts of this case as moderate.

[36]     Overall, in my assessment, the offending places you in Band 3, as the lawyers agree,  and  therefore  there  would  be  a  starting  point  of  around  14  years‟ imprisonment.    That  starting  point  would  need  to  be  adjusted  upwards  by  a significant period, possibly as much as two  years, on account of your previous

convictions and the fact this offending occurred while on parole subject to special

1      R v A M [2010] NZCA 114.

conditions.   There would then need to be an adjustment downwards to give you credit for your early guilty plea.

[37]     As  I  have  said,  that  guilty  plea  was  entered  at  the  earliest  possible opportunity, and it has avoided the need for the victim to give evidence.   On the other hand,  the prosecution  case against  you  was  overwhelming,  and  in  all  the circumstances I consider that any discount would not exceed 20 per cent.

[38]     You have also expressed remorse to all the report writers and displayed a degree  of  empathy  for  your  victim.    Having  regard  to  the  comments  made  by Dr Joughin at paragraph 36 of the report, I am not however necessarily persuaded that these expressions of remorse are genuine.  At best, I consider that you would be entitled to another 10 per cent discount on account of remorse.

[39]     By my calculation, all of that means that were I to impose a finite sentence, the appropriate term would be in the vicinity of 11 to 12 years, with a minimum period of imprisonment in the vicinity of seven and a half years.

[40]    The Crown, however, argues that preventive detention is the appropriate sentence given the risk of your reoffending and the need to protect the community.

[41]     Mr Glover contends the contrary and says the intention of the Sentencing Act, the interests of society and your needs will be better served by the imposition of a finite sentence.

[42]     The  purpose  of  preventive  detention  is,  as  I  have  said,  to  protect  the community from those who pose a significant and ongoing risk to the safety of its members.   It can only be imposed if the three conditions set out at s 87(2) of the Sentencing Act are satisfied. They are:

(i)The offender has  been  convicted  of a qualifying sexual  or violence offence. It is common ground that requirement is clearly satisfied in this case.

(ii)The offender was 18 years of age or over at the time of committing the offence.   That requirement is obviously also satisfied in your case.

(iii)The  Court  is  satisfied  that  the  person  is  likely  to  commit another qualifying sexual or violence offence were the person to be released at the sentence expiry date of a finite sentence.

[43]     The Sentencing Act also requires me, when considering whether to impose a sentence of preventive detention, to take into account five matters.

1.       Any pattern of serious offending disclosed by your history

[44]     I am satisfied there is a pattern of serious offending, and as noted by the report writers, your offending behaviour has evidenced a significant escalation over time.   You have gravitated from general and occasional violent offending to increasingly intrusive, violent sexual offending.  Dr Joughin notes at paragraph 53 that there have been increases in the extent of your disregard for your victims, the recklessness of your sexual offending and in the extent of your cognitive distortions and sense of entitlement to sex.

2.       The seriousness of the harm to the community

[45]     The long-term harm suffered by your victim and her immediate friends and family is obvious and significant.  Further, as Dr Galvin has noted, your prolonged, violent and degraded attack on a stranger is the sort of crime that creates fear in the community generally and restricts the freedoms of women, especially those who are required to work at night.

3.Information  indicating  a  tendency  to  commit  serious  offences  in  the future

[46]     As Mr Glover responsibly acknowledges,  all the health professionals are united  in  their  view  that  you  unfortunately  have  a  substantial  risk  profile  for

reoffending.  A number of what they call static and dynamic tests have been applied and they all point to a high or medium-high risk of quite rapid reoffending upon release.

[47]     Again quoting from Dr Joughin, at paragraphs 65 and 66:

The risk measures used in this assessment, along with the noted significant escalation in the intrusiveness and violence of Mr Tonihi‟s sexual offending, have a high level of convergence in predicting that Mr Tonihi is at a high risk of engaging in further sexual offending in the future.  In addition, Mr Tonihi has demonstrated an extremely rapid return to offending upon his release from his previous sentence for sexual offending, suggesting an inability to manage the factors that contribute to his offending even after the negative consequence of a significant period of imprisonment.

In addition, the presence of long-standing patterns of forceful and at times highly violent sexual behaviour, both with partners and strangers, along with his entrenched psychopathic personality structure, suggest that Mr Tonihi‟s high level of risk is likely to endure over the long term.

[48]     Drs  Galvin  and  Chaplow  also  make  the  point  that  risk  does,  however, decrease as a person ages, and that is something I must and do obviously take into account, as well as your expressed willingness to engage in treatment and to address the causes of your offending.

4.The  absence  of,  or failure  of,  efforts  by  the offender to  address  the cause(s) of the offending

[49]     You  have  never  received  treatment  specifically  directed  at  your  sexual offending.  However, it appears this is due at least in part to your own choices while in prison last time.  Since then you have to your credit sought counselling for the sexual abuse that was  committed against  you  as a child.   This  abuse has been identified as an underlying cause of your own criminal offending.

[50]     Of concern under this heading, however, is the fact that you offended in the context of a day of drinking, despite finishing a short but intensive alcohol and drug course only two months earlier.   Exactly the same thing happened in 2005 when again you failed to respond to treatment.

[51]     Also of concern is the fact that the offending occurred literally within days of your attending a second assessment session with a departmental psychologist.  You failed to report to that person that you were having any issues.

[52]     The report writers also draw attention to the fact that in 2009 you undertook a series of sessions with a Mäori specialist practitioner under the Department of Corrections Bi-cultural Therapy model.  The 2009 report noted that you had reported positive gains in relation to your improved respect for women and that you expressed a belief you posed a low risk of further serious offending.  For those reasons, you are recorded as having stated that offence-specific intervention would be “a waste of time”.

5.The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[53]    Mr Glover says although the first four matters may point to preventive detention, this fifth matter is the key determinant.

[54]     He contends that a finite sentence will provide adequate protection for society because of your new awareness about the sexual abuse that you yourself suffered and the effect this has had on your life, your new willingness to engage in treatment, your likely age on release and the fact that as a prisoner subject to a finite sentence it is likely that you will start treatment sooner than if you are on preventive detention. In his submission, the longer the delay in your receiving treatment, the more institutionalised and beset by a sense of hopelessness you will become, and accordingly the less likely it is that the desired outcome will be achieved.

[55]     I have carefully considered Mr Glover‟s submissions, which he has argued very well.  There is no doubt that the earlier you can start treatment, the better it will be.

[56]     However, ultimately, as Ms Carter put it, the essential issue is whether I can be confident that the possibility of successful treatment some time in the future

sufficiently deals with the high risk that you pose to adult females on release from any finite sentence.

[57]     Of particular concern to me are those past treatment failures.  Also deeply concerning is the fact that the current offending occurred within such a short time of your being released, and furthermore occurred while you were involved in a programme to assist you.  You did not access the resources available or seek help. Instead you reoffended in a similar way and committed a horrific crime with devastating and tragic consequences for your victim.

[58]     In my view, I would be failing in my responsibility to the community were I to impose a finite sentence, because I am satisfied, having regard to all the information before me, that a finite sentence will not provide adequate protection. Your risk levels are so high, and your past response to treatment so poor, that a finite sentence does leave open the real possibility that you may be released upon its expiration while still a significant risk to the community.  A sentence of preventive detention, however, will protect the community from harm by guaranteeing you will not be released until your risk of offending has been adequately addressed.  There will also be the ongoing protection afforded by life parole and the sanction of recall.

[59]     In coming to this conclusion I have not overlooked the availability of an extended supervision order.   However, in my view, to use the words from another case, the availability of that order does not tip the balance.  This was not lower-level sexual offending, nor do I consider you only a borderline candidate for preventive detention.

[60]     I am mindful too that preventive detention is not a sentence of last resort and it does in itself provide a real incentive for someone like you to seek the help that you so desperately need.

[61]     Having decided to impose preventive detention, the Sentencing Act requires me now to fix a minimum period of imprisonment which you must serve.  It cannot be less than five years.

[62]     The  Act  requires  me  to  determine  what  finite  term  might  have  been appropriate had I been going to impose a finite sentence and then, having regard to the gravity of the offence, what period the minimum term might be in relation to that finite term.

[63]     For the reasons I have already discussed, I consider the minimum period of imprisonment under a finite sentence would have been in the vicinity of seven and a half years.   I then have to consider whether more than seven and a half years‟ imprisonment is necessary for the protection of the community.

[64]     I have decided under the second stage of this enquiry that the appropriate term that should be imposed is seven and a half years.  I do that because of all the circumstances, and in the hope that the prison authorities may be able to provide you with the treatment that will assist you.

Sentence

[65]     Tony Shane Tonihi, you are convicted of each of the three counts to which you have pleaded guilty and you are sentenced to preventive detention on each of them.     Under  s 89  of  the  Sentencing  Act  I  impose  a  minimum  period  of imprisonment of seven and a half years.

[66]     Finally,  I make  orders  suppressing  the  publication  of  the  identity of  the victim.

Solicitors:

Crown Solicitor‟s Office, Christchurch

R G Glover, Christchurch