R v Toru
[2018] NZHC 1598
•29 June 2018
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2017-043-1229
[2018] NZHC 1598
THE QUEEN v
TEINA TORU
Hearing: 29 June 2018 Counsel:
J E Bourke for Crown
T T Bolstad for defendant
Sentence:
29 June 2018
SENTENCING NOTES OF DOBSON J
[1] Mr Toru, I now have to sentence you on all the charges on which I found you guilty following the trial in this Court and the one charge that you pleaded guilty to at the outset of the trial. I analysed the circumstances of the offending in the reasons for my verdicts, and you will have that. I am not going to repeat my findings in any detail now. I acknowledge that at the outset of the sentencing hearing you maintained your rejection of my verdicts and that is your prerogative.
[2] I have to sentence you on 15 convictions involving violent and sexual offending against your partner, and one conviction of attempting to pervert the course
R v TORU [2018] NZHC 1598 [29 June 2018]
of justice. All but the last of these offences were committed over a period of three days. They comprised two series of assaults on your partner, with a lapse of one day between them.
[3] For the first group of offences committed on 19 July 2017, I treat the two convictions for rape and three for sexual violation by unlawful sexual connection involving oral, digital and anal penetration as the most serious. Each of those convictions has a maximum penalty of 20 years’ imprisonment. The remaining convictions relating to 19 July 2017 are for assault with intent to injure laid as a representative charge, indecent assault and male assaults female.
[4] The offending on both 19 and 21 July 2017 involved a period of detention of your partner without her consent, and I found that the circumstances on each of those days made out the elements of the offence of kidnapping.
[5] In addition to the conviction for kidnapping on 21 July, I found you guilty of three assaults with intent to injure. One of those was laid as a representative charge in relation to slapping, and the second in relation to punching your partner. The third involved strangling, which is generally treated as a serious form of assault with intent to injure. I also found you guilty of threatening to kill. The last conviction in relation to 21 July was the assault with intent to injure charge to which you pleaded guilty.
[6]Now the maximum penalties for each of these offences are:
· kidnapping – 14 years’ imprisonment;
· indecent assault – seven years’ imprisonment;
· threatening to kill – seven years’ imprisonment
· assault with intent to injure – three years’ imprisonment; and
· male assaults female – two years’ imprisonment.
[7] The final conviction was for attempting to pervert the course of justice, for which the maximum penalty is seven years’ imprisonment.
[8] In order to identify comparative sentences, the Crown has referred to a series of other cases involving somewhat similar offending. On your behalf, Ms Bolstad has emphasised different features of the offending and she invites me to treat your offending as less serious than the Crown contends.
[9] After analysing all of the evidence, I was satisfied that the complainant’s version of events, described in her recorded interview with Police some days after the offending, was an accurate description. I was satisfied on that despite her attempts to deny that version of events in her evidence in the witness box and I rank the seriousness of your offending on the basis of the description given in that Police interview.
[10] I can use one of two approaches when calculating the appropriate overall sentence for a range of different offences. First, I can calculate sentences for each offence on a concurrent basis. That means I allocate a length of sentence for the most serious offence and then add an uplift for the other convictions being dealt with in concurrent sentences.
[11] Alternatively, I can calculate a separate stand-alone sentence for each of the convictions, on the basis that they would be served cumulatively or one after the other. Whichever method I use, I have to stand back at the end of the calculation and apply what is called the totality principle. That is to make sure that the total length of the sentence imposed is proportionate to the overall criminality involved in the offending as I found it to be.
[12] In your case, I am going to calculate a concurrent sentence building up the appropriate lengths of imprisonment for all of your offending on 19 July 2017, to which I will add an uplift for the offending on 21 July, and that is consistent with the approach urged on me by both counsel. I am then going to identify an appropriate sentence for the conviction for attempting to pervert the course of justice on a
cumulative basis, so that sentence will be served at the end of the other concurrent sentences imposed for all the other offending.
[13] I assess first the two convictions for rape from 19 July 2017. In doing so, I treat the accompanying violence, sexual violence and kidnapping convictions as part of that course of conduct so as not to double-count the criminality when setting the length of your sentence.
[14] The Court of Appeal guideline judgment in R v AM set out four bands for the relative seriousness of rape and unlawful sexual connection.1 That judgment includes a list of culpability factors that may be present in such offending. The number and degree to which each are present will indicate which band a particular case fits into. The following culpability factors are present in your case:
(a)First, violence and detention: The rapes were accompanied by a moderately serious level of physical violence, which had been on-going for a period of some hours. In addition to the physical abuse, the rapes were accompanied by sustained verbal abuse. The complainant described in her recorded interview how you cruelly put her down as a person, mocked what you thought were her incorrect religious beliefs and criticised her family and former partner. There was also a period of detention reflected in the kidnapping conviction. That extended the suffering inflicted on the complainant by detaining her in her mother’s house and not allowing her to take medication or to wash. These features form a material culpability factor of moderate seriousness.
(b)Second, harm to the victim: The sexual offending, accompanied by violence, inflicted a measure of physical harm. Without double- counting the relevance of injuries observed when the complainant was assessed by a doctor some days later, that ranks as a separate, but less important, culpability factor.
1 R v AM (CA7/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
(c)Third, the degree of violation: The rapes were accompanied by additional serious sexual violence, comprising your licking the complainant’s genitalia, inserting your finger in her vagina and anal penetration with your penis. This culpability factor is present to a moderate degree.
(d)Fourth, there was a minor element of abusing a position of trust. You had been staying with your partner in her mother’s home and having let you into her life and into her mother’s home, the complainant was entitled to trust that you would respect her and would behave properly while in her property.
(e)Fifth, the scale of the offending: Your offending is made more serious by the additional detention and violent offending which occurred on 21 July. Given that it is to be taken into account by way of an uplift, I do not include it as a part of my culpability assessment in respect of the 19 July offending. Therefore as I have identified them, there are four aggravating features that go to rank the relative seriousness of the rapes, two of which are present to a moderate degree.
[15] Ms Bolstad and the Crown agree that these features of the rapes place them within band two of R v AM. That is for moderately serious rapes and suggests a starting point of between seven and 13 years’ imprisonment. The Crown submitted a starting point of between 11 and 13 years and Ms Bolstad submitted a starting point of 11 years.
[16] I place the starting point for the rapes at 11 years and six months’ imprisonment. From a consideration of the summaries of fact provided in the other sentencing decisions and appeals that have been put to me by the Crown, I am comfortable that reflects the seriousness of the rapes here relative to those other cases.2
2 R v Winikerei HC Rotorua CRI-2008-029-001187, 25 June 2010; R v Ecclestone [2015] NZHC 2054; and R v Doughty [2012] NZHC 3543.
[17] Turning then to the convictions for the violent offending on 21 July 2017, I deal first with the three for assault with intent to injure. The most serious of those is the conviction for strangling the complainant. It is adequate to assess that together with the representative charges for slapping and punching the complainant. These were carried out over a prolonged period, and left the complainant physically bruised and mentally traumatised, and that much was apparent from the evidence of the others at the trial. Again, if sentencing you on this group of convictions alone, the conviction for strangling would attract a moderately lengthy term of imprisonment because of the relative seriousness now given to such offending in the context of domestic violence.3 There is also the addition of a kidnapping conviction. The detention was for longer than on 19 July and was attended by more prolonged violence and a threat to kill.
[18] As a comparator for this offending, the Crown cited the Court of Appeal decision in R v Hayes.4 In that case, the Court of Appeal treated a starting point of three years nine months’ imprisonment as well within the available range for convictions of kidnapping and male assaults female. On the summary of facts available, I treat that case as slightly more serious than yours.
[19] If sentencing you separately for the 21 July offending, I would adopt a starting point of three years and three months’ imprisonment. Applying that sentence as an uplift to the total starting points for the offending on 19 July would get to a total starting point, before applying the totality principle to consider the overall effect, of 14 years and nine months’ imprisonment.
[20] In the circumstances of your case, I have separately considered the appropriate cumulative sentence for the conviction for attempting to pervert the course of justice. That will be served after the end of the term for all the offending I have already analysed. You will be aware that the final sentence for Mr Anderson, your co-offender on that conviction, was six months’ home detention. However, his final sentence included a material discount for his guilty plea and I assess his part in that offending as somewhat less than yours.
3 Compare Waitai v R [2014] NZHC 2116 at [25] and Dickerson v Police [2016] NZHC 801 at [23].
4 R v Hayes CA171/06, 20 July 2006.
[21] The Crown has proposed a stand-alone sentence of two years, and Ms Bolstad suggests 21 months as a starting point. Dealing with it on a stand-alone basis, the material features are that you encouraged the complainant to deny the statement she had made to the Police in order to frustrate your prosecution, and that you did so for a considerable period. That makes your offending moderately serious. As against that, the complainant at least in part initiated the course of conduct that led to this charge and, having listened to the evidence, I am satisfied that she remained a willing and indeed committed participant throughout. There was no threat of violence. Quite to the contrary, you encouraged her to remain committed to the course you had discussed with her by repeatedly assuring her of how much you loved her.
[22] The courts do take attempts to pervert the course of justice very seriously and they arise in a wide variety of circumstances. Fitting this in the ranking of seriousness, if sentencing you just on that conviction I would impose a sentence of 24 months’ imprisonment. Applying that sentence cumulatively to the sentence for the 19 and 21 July offending produces overall starting points of 16 years and nine months’ imprisonment.
[23] As to your personal circumstances, you refused to co-operate with the pre- sentence report writer so I do not have the advantage of any assessment of your background. You have a limited history of prior convictions, they are all relatively old and none of them are for offending that would warrant an uplift. Having taken all but one charge to trial, you are not entitled to any material discount for that single guilty plea. I accordingly find no aggravating personal circumstances in respect of you as the offender that would justify any increase. Nor are there personal circumstances that I can take into account in your favour.
[24] That leaves the overall assessment of the criminality here. I remain comfortable that the way I have calculated the starting points is appropriate. However, the outcome produces a total length of sentence that is materially too high.
[25] At this point, I have regard to the complainant’s wish that you not be sentenced to prison at all. Her victim impact statement protests that “locking him up is breaking
up a home that has his children in it to a previous partner and … is inhumane and immoral”.
[26] I explained to the complainant, who was in Court when I delivered my verdicts, that I respect her views, but the nature and extent of your offending is so serious that it is not just her problem, it is also a problem for the community. In rejecting her wishes about the sentencing outcome, I acknowledge that such an approach risks reducing the number of rape charges that are prosecuted.5 I do not put the complainant’s wishes to one side for the reasons suggested by the Crown, namely that she is under your influence and is in effect not advancing support for you as a matter of her own independent judgement. I do not agree with that.
[27] The position is now settled in other cases that, particularly in a domestic violence situation, the Court is not to condone serious offending, even if the victim does.6 The sentences I have calculated take into account the principles and purposes of sentencing, which require me to impose appropriate sentences to denounce offending of this type and to deter you and others from carrying it out.
[28] In the circumstances of your case, I can only have regard to the complainant’s wishes as a mitigating circumstance in that her committed support may give some cause for optimism in terms of your rehabilitation. However, in the absence of any acknowledgement of remorse on your part or acknowledgement of responsibility for the offending, I consider that optimism can carry only very limited weight.
[29] As you will appreciate from the terms of the sentence indication I gave to you and the analysis I have undertaken today, the outcome of the sentences imposed after guilty verdicts at your trial cannot bear any resemblance to the earlier sentence indication. I provided that indication on the reduced number of charges that the Crown proposed at that stage of the proceeding, the gravity of which were materially different from the charges for which you are now convicted.
5 R v AM, above n 1, at [64].
6 R v Taueki [2005] 3 NZLR 372 (CA).
[30] Reflecting on totality, however, the concurrent sentences including all uplifts is too high, I assess, by three years and three months. It is coincidental that on my standing back, I require a reduction of the same length as the increase for the violent offending on 21 July. I do not intend the reduction to suggest that the offending on 21 July should be minimised. It is just that after taking all the factors into account, I increased it by that much and, quite independently of that, my assessment of the excessive length of sentence came out at the same number of months.
[31] Considered separately, but reflecting on its cumulative impact, I am also satisfied that a stand-alone sentence for perverting the course of justice would be too high by nine months.
[32] The final outcome therefore is 12 years and nine months’ imprisonment, comprised of concurrent sentences for all the offending on 19 and 21 July 2017 of 11 years and six months’ imprisonment, and a separate cumulative sentence of 15 months’ imprisonment on the conviction for attempting to pervert the course of justice.
Minimum period of imprisonment
[33] Now the Crown raised the prospect of imposing a minimum period of imprisonment but did not press the point. Statistically, Mr Toru, offenders sentenced to this length of sentence would generally face a minimum period of imprisonment which would increase the period before you are able to be considered for parole.
[34] Ms Bolstad has submitted that the necessary length of prison term renders it unnecessary in your case, and I agree. This is another respect in which I can have some regard to the complainant’s wishes. If you demonstrate a commitment to rehabilitation, hopefully with the continued support of the complainant, and participate in whatever courses may be available to you in prison, then there will not be a need to defer the first consideration of your entitlement to parole. I accordingly do not impose any minimum period of imprisonment.
Final sentences allocated to individual convictions
[35] The effective end sentence is 12 years and nine months’ imprisonment. Although it has no bearing on the overall length, I am also obliged to allocate a finite sentence to each of the convictions, and I do so on these terms:
· Charges 7 and 9 (rape): concurrent terms of 11 years and six months’ imprisonment on each;
· Charges 5, 6 and 8 (unlawful sexual connection): concurrent terms of four years’ imprisonment each;
· Charge 1 (kidnapping, 19 July 2017): 18 months’ imprisonment;
· Charges 2, 4, 12 and 13 (assault with intent to injure and indecent assault): concurrent terms of six months’ imprisonment each;
· Charges 3 and 10 (male assaults female): concurrent terms of three months’ imprisonment;
· Charge 14 (assault with intent to injure relating to strangling): a concurrent term of 12 months’ imprisonment;
· Charge 11 (kidnapping, 21 July 2017): a concurrent term of 18 months’ imprisonment;
· Charge 15 (threatening to kill): convicted and discharged; and
· Charge 16 (attempting to pervert the course of justice): a cumulative sentence of 15 months’ imprisonment.
First strike warning
[36] Now the convictions for rape, sexual violation and kidnapping qualify as first strike offences. I accordingly give you a first strike warning in the following terms.
If you are convicted of any serious violent offence (except murder) committed after you received this first warning, you will receive a final warning. In addition, if the Judge imposes a sentence of imprisonment for that offence (other than life imprisonment for manslaughter, or preventive detention) then you will serve that sentence without parole or early release. If you are convicted of a murder committed after you received this first warning, you will be sentenced to imprisonment for life. You must serve the life sentence without parole unless it would be manifestly unjust to do so. If you receive a life sentence without parole, you will not be released from prison. If serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve. You will be provided with the terms of that first strike warning, Mr Toru, in writing.
Dobson J
Solicitors:
Crown Solicitor, New Plymouth
Counsel:
T T Bolstad, New Plymouth
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