R v Tupuola HC Auckland CRI 2009-090-6439

[2010] NZHC 2213

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-090-6439

CRI-2009-090-248

THE QUEEN

v

ATONIO NAOUPU TUPUOLA

Hearing:         9 December 2010

Appearances: J L S Shaw for Crown

P E Dacre and M T Shand for Accused

Judgment:      9 December 2010

SENTENCE OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

P E Dacre, PO Box 47963, Ponsonby, Auckland 1144

R V TUPUOLA HC AK CRI-2009-090-6439  9 December 2010

[1]      Mr Tupuola, you appear today for sentence on a number of charges which involve sexual offending.  You were convicted on 19 October this year, following your   trial   on   eight   counts   involving   sexual   offending   against   two   young complainants who were your cousins.   The jury found that you had raped your cousin ML, and indecently assaulted her on two occasions.  You were also convicted of four indecent acts against your cousin EL, who was what the law regards as a young person at the time, being fourteen years of age.  In addition, the jury found that you had assaulted her with intent to commit sexual violation.

[2]      Your defence was that the alleged offending had not occurred, but the jury plainly rejected that.

[3]      The most serious of these offences was the rape.  In her video taped statement that was played to the Court as her evidence-in-chief, ML described an event that took place that Easter weekend in March 2008 when you took her to a nearby park, placed her on the ground and lay on top of her.  You took her clothes off whilst she was trying to push you away and raped her.  You told her not to tell anyone what had occurred or you would give her a “hiding”.  She spoke of feeling disgusted by what you had done to her.

[4]      The following day, when you were in a car you attempted to kiss her as she pushed you away.  That formed the basis of the offence of indecent assault on which the jury also convicted you.

[5]      Finally,  insofar  as  ML  is  concerned,  there  was  an  event  in  which  you assaulted both her and EL on a picnic table in a park.  The evidence was that you pushed them both onto the table and assaulted them in a sexual way.  This formed the basis of the other charge of indecent assault on ML.

[6]      Insofar as the offending against EL is concerned, there was one count of doing an indecent act on her based on that same incident.  She managed to get free and attempted to pull you away and she hit you to try to make you stop what you were doing to ML.  The three other counts alleged that you did indecent acts on her: one by pushing her legs apart with your legs, a second by pushing her onto a bed,

touching her breasts and kissing her, and a third by touching her legs whilst you were both in a car.

[7]      The most serious allegation concerning EL was the charge of assaulting her with intent to commit sexual violation.  That crime occurred in Kaitaia in November

2008 when you took her to a park against her will, lay on her, kissed her and touched her breasts and genital area.

[8]      The Crown case was that in assaulting her in that way you were in fact intending to rape her.  The jury verdict accepted that that was the position.

[9]      So in summary, you are to be sentenced in relation to what you did to ML on one count of rape which carries a maximum penalty of 20 years’ imprisonment, and two counts of indecent assault carrying with them a maximum term of seven years’ imprisonment.  In the case of EL, you are to be sentenced in relation to four counts of doing an indecent act on a young person, which carry a maximum penalty of seven years’ imprisonment and one charge of assault with intent to commit sexual violation which carries with it a maximum term of ten years’ imprisonment.   So these are serious offences.

[10]     I have had regard to the victim impact statements that Mr Shaw has provided. As is typical of the cases such as this, they report that your offending has had very adverse consequences, particularly insofar as the complainant ML is concerned.  In her victim impact statement she states that the rape has dramatically scarred her life forever.  She speaks of the anger that she feels towards you for what you did both to her and her sister.  She says that you were a family member that she trusted and both she and her sister had done their best to develop a close family bond with you since your arrival from Samoa.  And she says that what you did to her was the ultimate in betrayal.

[11]     Prior to the rape she hoped to join the New Zealand Navy and she worked hard toward that goal for a year before being accepted into navy training at the Devonport Base on the North Shore.  However, she lasted only about three weeks at

the training before pulling out of the course.  The reason she did that is because all of the instructors are males and she no longer feels safe around male people.

[12]     She speaks of the sorrow she feels for her father, because the event has impacted greatly on him.  She says, and I quote now:

In the Samoan culture family is an extremely important part of life and the defendant and his family were loved and trusted by my father.   Since my sister and I told my father about the sexual abuse he has had very little to do with his extended family and I see every day that his affects him.

[13]     She then refers to the ordeal that she and her sister had to endure at the trial and how emotionally draining that was for her and the increased anger that that caused effectively as a result of being accused of lying about the events that had taken place.  She notes that you have shown no remorse for what you did.

[14]     I have read the pre-sentence report that has been prepared for today.  From it I understand that you have been married for a year now and are currently expecting your first child.  Your partner has four children from a previous relationship and you are regarded as their father.  You arrived in New Zealand from Samoa in 2006.  Your visa expired in May 2009 and you are likely to be served with a deportation order.

[15]     You continue to deny committing these offences and consequently you have shown  no  remorse.     You  maintain  that  the  charges  against  you  have  been orchestrated by your sister-in-law.   Notwithstanding the present convictions, you report a good and supportive relationship with your wider family and I note that members of your family and other persons who you know have written in support of you.  You need to understand, however, that I must sentence you today on the basis that you have been convicted of these crimes.  I do note from the report that there are no relevant previous convictions for offending of this kind.

[16]     Both counsel have filed written submissions which I have read and they have also addressed me this morning.  Mr Shaw has identified a number of aggravating features of your offending.  He has referred first to the vulnerability of the victims. They were relatively young at the time of the offending, being respectively 16 and

14 years of age.  It appears that on a number of occasions you offended against them

when they were affected by alcohol.  Because you were an older relative, trusted to be in their presence, your offending involved a breach of trust.   You have been convicted of offences against ML on three occasions and against EL on five. Consequently, the effective sentence imposed needs to take account of eight different offences committed against two complainants.  Mr Shaw also noted that some of the offences were accompanied by a degree violence.  This was in what he referred to as the picnic table incident, in which you indecently assaulted both ML and EL, having pushed both of them onto a picnic table and held them down.  Also, when you raped ML she was trying to push you away, and you threatened her with violence if she told anyone what had occurred.

[17]     Sentencing for this kind of conduct engages various purposes and principles set out in the Sentencing Act 2002.  There is a need to hold you accountable for harm done to the victims, to promote in you a sense of responsibility for and an acknowledgement of that harm, to denounce your conduct and to deter you and others from committing similar offences in the future.  The sentencing must also be

guided by the Court of Appeal’s judgment in a case called R v AM.[1]   On the basis of

that authority, Mr Shaw submitted that an appropriate starting point for sentencing purposes in relation to the offending against ML, taking the rape as the lead offence would be a term in the region of eight to nine years’ imprisonment.  In respect of EL, he properly identified the assault with intent to commit sexual violation as the lead offence and submitted that a starting point of five to six years’ imprisonment would be appropriate.   Overall, he submitted that an effective sentence of 11 years’ imprisonment should be imposed, and that the Court should give consideration to ordering that you serve a minimum term of imprisonment so as to emphasise the need to hold you accountable, to denounce what you have done, and to deter you and others from similar offending.

[1] R v AM [2010] 2 NZLR 750

[18]     Mr Dacre has addressed me this morning.  He submits that a lower starting point should be adopted in respect of the offending against ML of seven to eight years’ imprisonment.   In respect of the offending against EL, he submits that a starting point of two years would be appropriate with an uplift of six months in

respect  of  the  other  offending  against  her.    Considering  the  overall  offending, Mr Dacre submitted that I should adopt a starting point in the vicinity of eight years.

[19]     He noted then that you had no prior convictions.  That you have apparently been  a  good  husband  and  father  to  your  wife’s  children  as  well  as  making  a significant contribution to your extended family.   He submitted that there was no need in your case to impose a minimum term of imprisonment.

[20]     In the case to which I have referred, R v AM[2]  the Court of Appeal provided sentencing guidelines for cases involving sexual violation.   One set of those guidelines concerned sexual violation where the lead offence is rape.  In its judgment the  Court  described  four  sentencing  bands  in  respect  of  such  cases.    Band  1 envisages starting points between six and eight years, and Band 2 of between seven and 13 years.  In the present case, the Crown’s submission was that your offending against ML, on a stand alone basis, would properly attract a starting point in the region of eight to nine years’ imprisonment.  That would be to treat the matter as falling within Band 2.  Mr Dacre, also taking the offending against ML on a stand alone basis submitted that the matter should be treated as within the upper end of Band 1, justifying a starting point of between seven to eight years.  On the view I take, classification into one band or the other is not necessary;  the case is really in the territory where the bands overlap.

[2] Above n 1.

[21]     The Court of Appeal identified a range of aggravating features which should influence the sentence imposed.   Here there is a degree of vulnerability having regard to ML’s comparatively young age, and the significant gap between her age and yours.  The facts also establish breach of trust.  Both ML and her sister were your cousins.   While I accept Mr Shaw’s submission that there was a degree of violence, overall I doubt whether the sentence should be weighted for that factor on the basis that it was not much more than really might have been necessary in any event to overcome the will of the victim.  I do note, however, that you made a threat of violence if ML told anyone what occurred.

[22]     The other aggravating feature that is here, however, is that there was more than one offence.  Although there was only one rape, there were a number of other offences committed against both victims.  Isolating the offending relating to ML, I consider  that  an  appropriate  starting  point  taking  into  account  the  aggravating features of age disparity, and breach of trust would be a term of about eight years’ imprisonment.   However, the sentence imposed on the rape, must also reflect the overall offending against ML and include a weighting for the two counts of indecent assault.   I consider that they justify an uplift of six months which would take the starting point in respect to the offending against ML, to eight years and six months.

[23]     Turning  then  to  the  offending  against  EL,  I  accept  Mr Dacre’s  written submission that it is not appropriate to seek guidance in relation to that from the Court of Appeal’s decision in R v AM[3].  The offending against EL did not involve rape  or  any  of  the  other  forms  of  sexual  violation  that  were  discussed  in  that decision.   Mr Dacre submitted that based on the facts of the assault with intent to commit sexual violation a starting point in the region of two years’ imprisonment

would be appropriate in respect of the most serious offence, together with an uplift in the vicinity of six months for the other offending.  I do not accept that that would be an adequate response.  The offending involved a young person, and the assault with intent to commit sexual violation carried with it a maximum term of ten years’ imprisonment.    The  jury  accepted  the  Crown  case  that  you  had  assaulted  her intending to commit rape.  You had effectively forced her to go from where she was standing outside a party at night, took her to a vacant section, pulled her into bushes and pushed her to the ground.  You kissed her by forcing your tongue into her mouth and touched her breasts and genital area.  I consider that a term of three years six months’ imprisonment would be appropriate for that offending, taking into account in her case also the aggravating circumstances of age disparity and breach of trust. To that I would add an uplift of a further six months to reflect the other offences against EL.  That would result in an effective sentence of four years, to be imposed in respect of the sentence of assault with intent to commit sexual violation.

[3] Above n 1.

[24]     There are no aggravating circumstances that relate to you personally.   Nor however do  I consider that there are significant mitigating factors which would justify any significant reduction in sentence.

[25]     Mr Dacre has emphasised that you have family support and that you have no relevant prior convictions, but I am not persuaded that that should lead to much of a reduction given that you have been convicted on eight counts and the offending occurred at two different times in 2008.

[26]     I consider that in terms of mitigating factors an allowance of three months will be sufficient.

[27]    The question that then arises is whether cumulative sentences should be imposed,  or  whether  there  should  be  concurrent  sentences.    Under  s 84  of  the Sentencing Act, concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are connected in terms of the time at which they occurred.  That is the case here.  As a result, under s 85 of the Sentencing Act which requires the Court to consider the totality of offending, where concurrent sentences are to be imposed, the most serious offence must receive the penalty that is appropriate for the totality of the offending and each of the lesser offences should receive a penalty appropriate to that offence.

[28]     That means that the rape of ML should be treated as the lead sentence and receive the penalty that is appropriate for all of the offending.  Having regard to what I have already said, I consider that the appropriate sentence to impose on the rape is a term of nine years nine months’ imprisonment.

[29]     Would you now stand please?

[30]     In the result, the sentences I impose are as follows:

a)        For  the  offence  of  raping  ML,  you  are  sentenced  to  a  term  of imprisonment of nine years and nine months.

b)In  respect  of  the  two  counts  of  indecent  assault  on  ML,  you  are sentenced in each case to a term of imprisonment of two years.

c)        On the charge of assaulting EL with intent to commit sexual violation you are sentenced to a term of three years six months’ imprisonment.

d)In respect of the four counts of doing an indecent act on EL, you are sentenced in each case to a term of imprisonment of six months.

[31]     All of these terms are to be served concurrently.

[32]    Mr Shaw urged that I should order that you serve a minimum term of imprisonment so that you would not become eligible for parole after serving one- third of your sentence.  I do not consider it necessary for any of the relevant purposes of sentencing to impose a minimum term and I do not do so.

[33]     The written record of these sentencing notes will refer to the victims as ML

and EL.