R v Utatao

[2018] NZHC 2044

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-2501

[2018] NZHC 2044

THE QUEEN

v

SAMUEL MCCARTHY UTATAO

Hearing:

10 August 2018

Appearances:

K A Lummis and D S Houghton for Crown

M J Dyhrberg QC and T Spencer for Defendant

Judgment:

10 August 2018

SENTENCING REMARKS OF LANG J

R v UTATAO [2018] NZHC 2044 [10 August 2018]

[1]    Mr Utatao was found guilty at trial on numerous charges relating to sexual and violent conduct against two complainants. At the conclusion of the trial and following delivery of the jury’s verdicts he did not wish to remain in the courtroom whilst convictions were entered against him. For that reason I postponed the entry of convictions until sentencing. As a consequence, I also postponed the required warning under the so called “three strikes” legislation.

[2]    Mr Utatao has been convicted on three counts of rape. Given those convictions a three strike warning is required. This morning, however, he has indicated firmly, both to his counsel and to the security staff, that he is not prepared to leave his cell. He has signed a waiver in the following terms:

My name is Samuel McCarthy Utatao

D.O.B 12/01/59/

I am at the Auckland High Court today for sentencing, following a jury trial. I do not wish to attend my sentencing hearing. I consent to sentencing going ahead in my absence. I hear from the custody people in the cells at the Auck High Court that the court says I need to go up to the courtroom, to hear the judge read out to me a strike warning. I am going to stay in the cells, and the judge can read it out in my absence. My lawyer Marie Dyberg [sic] QC can relay it to me. I consent to the strike warning being read out in Marie Dyberg’s absence.

The note is then signed and dated by Mr Utatao.

[3]    I was initially concerned at the prospect of proceeding in circumstances where Mr Utatao was absent from the courtroom. Ms Lummis referred me to s 123 of the Criminal Procedure Act 2011. This prohibits the Court from sentencing an offender charged with a category 2, 3 or 4 offence in his or her absence. The section also provides that where a defendant is absent, the Court may issue a warrant for his or her arrest.

[4]    Upon reflection, I do not consider Mr Utatao is absent. He is present in the Court precincts and, if necessary, I could have him brought by force to the courtroom. Having regard to the views he has expressed, however, I am not prepared to do that. I am prepared to accede to his wishes and sentence him in his absence from the courtroom, but in his presence within the court percincts. I will also direct that he

remains in the Court precincts until such time as the written three strikes warning has been given to him, together with a copy of my sentencing remarks. He will therefore have notice of the three strikes warning. He will know his sentence and the reasons for it before he leaves the courthouse. I do not see how his interests are prejudiced in any way by that procedure being adopted.

Three strikes warning

[5]    Given Mr Utatao’s convictions for rape he is now subject to the “three strikes” law. I am now going to give him a warning of the consequences of another serious violence conviction. He will also be given a written notice outlining these consequences. This lists “serious violent offences”.

[6]    The first consequence is that if Mr Utatao is convicted of any serious violent offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, he will serve that sentence without parole or early release. The second consequence is that if Mr Utatao is convicted of murder committed after this warning, he must be sentenced to life imprisonment. That sentence will be served without parole unless it would be manifestly unjust for that to occur. In that event the Judge must sentence Mr Utatao to a minimum term of imprisonment.

Background to offending

[7]    Mr Utatao was convicted of charges relating to offending against two victims that occurred approximately 11 months apart.

The offending against CW

[8]    The first set of charges arose from an incident that occurred on a date unknown between 31 March and 6 April 2015. The complainant in relation to this offending is CW, who was aged 14 years at the time of the offending. At that time she was in the care of the Child Youth & Family Service. Evidence given at trial confirmed she was a troubled individual, and at the time of the offending was in fact absent without leave from the care of the Service.

[9]    The incident giving rise to the charge occurred in the late evening or early hours of the morning. Evidence was given by an associate of CW, who said she was in a bar in Karangahape Road when she saw CW crossing the street. She was concerned that CW was out late at night on her own so she called out to her and then looked after her for the balance of the evening. Whilst CW and her associate were in the bar, the associate saw Mr Utatao. She recognised him because she had met him in years gone by through her father. She referred to him by the name “Uncle”. She struck up a conversation with Mr Utatao and asked him whether he had a methamphetamine pipe. He said that he did not have one on him, but that he had one back at his flat, which was  nearby.  Mr  Utatao,  CW  and  CW’s  associate  then  walked  back  to Mr Utatao’s flat, which was a short distance away.

[10]   They then socialised for some time and smoked methamphetamine. CW’s associate produced methamphetamine and Mr Utatao also produced some of that drug himself. The jury convicted Mr Utatao on a charge of supplying methamphetamine to CW. This reflects the jury’s acceptance that he supplied methamphetamine to CW whilst she was in his apartment.

[11]   At some stage Mr Utatao, CW and her associate left the flat with others who arrived at the flat. They travelled to Sky City Casino and then back to Mr Utatao’s apartment. The other people then left the address, and this left Mr Utatao, CW and her associate in the apartment. Mr Utatao then gave CW’s associate a sum of money to go down the road to a service station to buy cigarettes and soft drinks. Quite clearly, this was a ruse to remove her from the apartment so he could sexually offend against CW.

[12]   After CW’s associate left the apartment, Mr Utatao began making suggestive comments to CW. He then put his hands down her pants and touched her genitalia under her clothing. She was able to escape by going into the bathroom and locking the door. Whilst she was in the bathroom, CW began texting her associate asking her how long she would be and telling her she needed to come back to the apartment.  Mr Utatao meanwhile was becoming frustrated at the fact that CW was locked in the bathroom. He began making threats to her as to what would occur if she did not come out. This led to her leaving the bathroom and going back into Mr Utatao’s apartment.

She then described the act of rape occurring. She says she was threatened by the person who was raping her with a taiaha that was present in the room.

[13]   CW’s associate left the service station immediately after receiving CW’s texts. She went back to the apartment, but found she could not gain entry. She then went to the back to the  apartment, and began throwing stones at what she believed to be    Mr Utatao’s window. This eventually prompted Mr Utatao to let CW’s associate back into the building. CW and her associate then left the address.

[14]   CW did not report this offending to the police for many months. At trial, she denied Mr Utatao was the person who had offended against her. She maintained it was another person and not Mr Utatao. The evidence as a whole on this point was overwhelming. CW’s associate gave compelling evidence regarding the journey to the apartment. She knew Mr Utatao from days gone by, and photographs of his apartment demonstrate that it was the same place as she described it as being. A taiaha was also found in the address consistent with the evidence given by CW regarding the threats that Mr Utatao made.

[15]   This incident led to Mr Utatao being convicted on one charge of rape,1 one charge of doing an indecent act on a person under the age of 16 years2 and one charge of supplying the Class A controlled drug methamphetamine3 to CW.

The offending against AM

[16]   The second set of charges relates to an incident that occurred on the afternoon and evening of 6 March 2016.  It involves a complainant known as AM.  AM and  Mr Utatao had been in a relationship of sorts for some months prior to the incident giving rise to the charges. This had involved previous sexual contact. It is also clear, however, that the relationship, if that it is what it could be called, involved violence on the part of Mr Utatao. AM described an incident that occurred some weeks prior to 6 March 2016 when Mr Utatao had punched her in the face on several occasions,

1      Crimes Act 1961, s 128B.

2      Crimes Act 1961, s 134.

3      Misuse of Drugs Act 1963, s 6(1)(a).

causing her to have black eyes. Photographic evidence of this was produced to the jury at the trial.

[17]   On the afternoon of 6 March 2016, AM went to Mr Utatao’s apartment. It was the same apartment CW had visited 11 months earlier. She arrived at about 1.30 pm, and during the course of the afternoon she and Mr Utatao drank alcohol. AM describes going to sleep and then waking up and seeing Mr Utatao with a syringe. She also saw a mark on her arm, and believed Mr Utatao had injected her with a drug. Mr Utatao faced a charge of assault with a weapon as a result of that incident, but the jury acquitted him on it. In doing so I suspect the jury accepted AM’s evidence that she was not particularly concerned about Mr Utatao injecting her with a drug, although she believed it would have been polite of him to have asked her first.

[18]   AM then describes a series of incidents that began when Mr Utatao appears to have become angry whilst AM was looking for a hairpin in his bedroom. He told her to get undressed and made her put on some clothes that were not hers. A series of events then occurred that were prompted by threats of violence by Mr Utatao. He threatened to hit her in the head with a vodka bottle, he threatened to chop her up with a meat cleaver and he also punched her. During this series of events he made AM perform oral sex on him. He also raped her.

[19]   AM describes the series of incidents as being “cycles”, in which sexual and violent offending would occur. There would then be a break before further sexual and violent offending occurring. At some stage during the incident AM said Mr Utatao smashed a mirror over her head. The remains of the mirror were depicted in photographs produced at trial. In these photographs the broken mirror is standing in the bathroom of Mr Utatao’s apartment. Mr Utatao threatened to cut AM with a shard of glass from the mirror. Like CW, AM also said Mr Utatao threatened to strike her with his taiaha if she did not do what he wished. Later on during these incidents, a second incident of rape occurred and Mr Utatao also punched AM again several times on the jaw. At the beginning of these events, Mr Utatao indecently also assaulted AM by inflicting a hickey on her neck.

[20]   This series of events did not end until some time during the evening of 6 March 2016. The jury saw film footage of Mr Utatao and AM at a liquor store where AM purchased liquor under Mr Utatao’s supervision. This was at about 9.30 pm. Mr Utatao then supervised AM getting onto a bus to travel home.

[21]   Mr Utatao’s defence at trial to these charges was that AM had made her story up. He alleged she was concerned at the fact that her former partner, and the father of her child, and his current partner were angry at her on that evening because she had failed to collect her child from their address. The defence case was that this prompted AM to go the police the following day to make a false complaint against Mr Utatao. This would provide some justification for her failure to pick up her son as scheduled the previous evening.

[22]   This series of events led to the jury finding Mr Utatao guilty on one charge of rape, one charge of indecent assault,4 one charge of sexual violation by unlawful sexual connection,5 three charges of threatening to cause AM grievous bodily harm,6 two charges of assaulting AM with intent to injure her,7 and two charges of assaulting AM with a weapon.8

A.        Finite sentence

Starting point

[23]   The real issue in the present case is whether a finite sentence or a sentence of preventive detention should be imposed. Before issuing the issue of preventive detention, however, I propose to consider the finite sentence that would be appropriate if that were to be the end result.

[24]   Neither AM nor CW has provided a victim impact statement prior to sentencing. It is clear, however, that the incidents giving rise to the charges have had a significant effect on both.  CW was a troubled young person when this incident

4      Crimes Act 1961, s 135.

5      Crimes Act 1961, s 128B.

6      Crimes Act 1961, s 306.

7      Crimes Act 1961, s 193.

8      Crimes Act 1961, s 202C.

occurred. Mr Utatao bears none of the blame for that, but he must surely bear blame for some of the issues she will now be required to deal with in recovering from his assaults upon her.

[25]   AM is an older person, but it is nevertheless clear from her evidence at trial that she feared for her life during this series of events. She thought she would never be able to leave Mr Utatao’s apartment alive. I have no doubt that what occurred on  6 March 2016 will have lasting and significant consequences for AM.

CW

[26]   I take the lead charge in relation to CW to be that of rape, even though the maximum sentence for that charge is 20 years imprisonment whereas the maximum sentence for supplying methamphetamine is life imprisonment. I regard the supply of methamphetamine to be very much a secondary issue, and was really part and parcel of the events that occurred during that evening.

[27]   The starting point on the rape charge is governed by the guideline judgment of the Court of Appeal in R v AM.9 Both counsel agree the offending falls somewhere around category 2 identified in R v AM. This calls for a starting point of seven to 13 years imprisonment.

[28]   There are obvious aggravating factors about this offending. The first is that it occurred against a very vulnerable female. The second is that it involved a degree of premeditation, although this was for a relatively short period. The offending also involved detention of CW against her will in Mr Utatao’s apartment. I consider that, taken together, those aggravating factors warrant a starting point of around ten years imprisonment.

AM

[29]   The lead charges in relation to the offending against AM are likewise governed by the principles set out in R v AM. Again I take the lead charges to be those of rape and sexual violation. This offending has several aggravating factors. First, it took

9      R v AM [2010] 2 NZLR 750 (CA).

place over a considerable period, some seven to eight hours. Secondly, it involved the detention of AM in Mr Utatao’s apartment. Thirdly, it involved both actual violence in the form of punching and also threatened violence of different types.

[30]   Taken together, I consider this offending also falls within band 2 identified in R v AM. Although the victim was not as vulnerable as CW, nevertheless the effects have been significant for her. Given the length of time over which the offending occurred, I would select a starting point of 11 years imprisonment.

[31]   Totality principles obviously need to  be  considered.  An  end  sentence  of 21 years imprisonment would be out of all proportion to the overall culpability in relation to all of the offending. For that reason I would take a starting point of 13 and a half years imprisonment to reflect the overall gravity of Mr Utato’s offending.

Aggravating factors

[32]   Mr Utatao has previous convictions for this type of offending. The most serious of these are three convictions for rape that were entered on 9 May 2001. On that date Mr Utatao was convicted and sentenced to nine years imprisonment on a large number of charges in addition to those of rape. These related to a series of incidents that occurred over approximately four days between 14 and 17 August 2000, when Mr Utatao kept his then partner effectively a prisoner in their house. He beat her on numerous occasions and also raped her several times. That offending obviously has parallels with the present offending.

[33]   I would add an uplift of 12 months to reflect the previous offending. This is not to punish Mr Utatao again for the earlier offending. Rather, it makes the present offending more serious. He has failed to heed the lesson of a nine year prison sentence and has engaged again on two occasions in similar offending.

[34]   This produces an end sentence of 14 and a half years imprisonment before taking into account mitigating factors.

Mitigating factors

[35]   On Mr Utatao’s behalf, Ms Dyhrberg submits I should apply a discount for remorse. This reflects the fact that Mr Utatao continually said he was sorry to both the writer of the pre-sentence report and those persons who prepared reports in relation to the issue of preventive detention.

[36]   I am not prepared to apply any discount for remorse. I view Mr Utatao’s apologies to those persons as being a tactic he used to avoid talking to them. I do not detect any genuine remorse and I decline to apply any discount in relation to it.

[37]   It follows that the end finite sentence would be one of 14 years six months imprisonment.

Minimum term of imprisonment

[38]   In the ordinary course of events Mr Utatao would be eligible to apply for parole after serving less than five years in prison. In my view that would be manifestly inadequate to reflect all of the factors set out in s 86 of the Sentencing Act 2002. These include not only protection of the community, but also the need to denounce the offending, hold the offender accountable and deter the offender from engaging in similar conduct in the future. I would therefore require Mr Utatao to serve eight years in prison before being eligible to apply for parole.

B.         Preventive detention

[39]   This brings me to the real issue in the present case, which is whether the indeterminate sentence of preventive sentence should be imposed.

[40]   The purpose of that sentence is to protect the community from those who pose a significant and ongoing risk to the safety of its members.10 Mr Utatao has now been convicted of several qualifying offences in terms of s 87(2)(a) of the Act. He is also now 59 years of age, so he also qualifies under s 87(2)(b). The remaining issue is

10     Sentencing Act 2002, s 87(1).

whether the Court is satisfied that Mr Utatao is likely to commit another qualifying sexual or violence offence at the end of his sentence.11

[41]   In considering that issue, the Court is required to take into account the factors set out in s 87(4) of the Act. These are:

(a)Any pattern of serious offending disclosed by the offender’s history;

(b)The seriousness of the harm to the community caused by the offending;

(c)The absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

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

Pattern of serious offending

[42]   Mr Utatao undeniably now has a pattern of serious offending as disclosed by his history. There is first the offending that occurred against his then partner in 2000. That was serious sexual and violent offending as the sentence imposed demonstrates. In 2014, Mr Utatao was sentenced to ten months home detention on a charge of injuring with intent to injure. That offending occurred within four years of his release from prison. It involved him getting into bed with a person sharing the same boarding house as him. He saw marks on that person’s body, and became convinced the person had been unfaithful to him. It is not clear whether he was in any form of relationship with that complainant. He then administered a severe beating to her.

[43]   There is also the fact that Mr Utatao has now been convicted of two more sets of charges involving serious violent and sexual offending. There can be no doubt that he has now established a significant pattern of serious offending.

11     Sentencing Act 2002, s 87(2)(c).

Seriousness of harm to community

[44]   The seriousness of the harm to the community of this type of offending really goes without saying. Offending of this type causes ripples throughout the community. It causes obvious distress and long-term effects to the victims, but the effects go much wider than that. In particular, the offending against CW indicates a preparedness to offend on a relatively random basis against a total stranger.

Information indicating a tendency to commit serious offences in the future

[45]   I have the benefit of three reports, two of which have been prepared by a psychiatrist, and the third by a psychologist. The psychiatrist’s initial report was not particularly helpful, because he considered he did not have sufficient information to enable him to provide the Court with any meaningful assistance. The psychiatrist subsequently provided an updated report after he received further information. This enabled him to provide the Court with some assistance. He qualifies his opinions, however, by saying that prediction of risk is best assessed immediately prior to a person’s release into the community. Predictions are much more difficult when they are directed well into the future, as must inevitably be the case here.

[46]   In addition, the psychiatrist and psychologist are both hampered by the fact that Mr Utatao has declined to engage with them in preparing their reports. He was not prepared to be interviewed and, as a result, the health assessors have much less information than is desirable for sentencing purposes. It means, in particular, that the health assessors are required to rely on static risk predictors and cannot meaningfully refer to dynamic risk factors. Nevertheless, the psychiatrist reaches the following conclusion in relation to Mr Utatao’s risk of future offending:

In summary, considering both static and dynamic risk factors, noting the profound lack of information available to me my opinion is that at the time of sentencing there is at least a moderate risk of further sexual and/or violent offending. The greatest risk in the future may well be to women and post- pubescent females who Mr Utatao is in a relationship with or believes that he is entitled to have a relationship with. From his past history of offending, alcohol, methamphetamine and other drugs and association with violent anti- social drug abusing peers are likely to constitute additional risk factors for him.

[47]   The psychologist is similarly handicapped in the information she is able to provide to the Court. Nevertheless, the tests she has carried out lead her to the following conclusions:

In summary, taking into account static and dynamic factors as well as clinical opinion, Mr Utatao’s risk of sexual and violent offending following release from prison is deemed as High.

Mr Utatao is most likely to reoffend violently. His future violent offending would likely include reactive and instrumental violence against partners in a domestic context. It is highly likely that this would be in the context of a chaotic lifestyle of substance abuse. This will most likely be in the context of him experiencing intense emotions, anger and jealousy and reacting with threats of and /or physical violence. It could be impulsive or following a period of rumination. Because of his impulsiveness and willingness to use weapons, the risk of harm and even death is possible. He will feel remorseful afterwards.

If he were to sexually reoffend, it is most likely within an intimate relationship and in the context of relational conflict. Mr Utatao is likely to be experiencing an intense emotional state and likely in a state of jealousy. Victims are most likely adult females, most likely known to Mr Utatao. Mr Utatao may also use intimidation or drugs in attempt to coerce the victim or overcome victim resistance. There is a strong possibility that he will use physical force as well as weapons to gain compliance.

The absence of, or failure of, efforts by the offender to address the cause or causes of the offending

[48]   Mr Utatao has undergone some programmes whilst in prison on previous occasions. Nevertheless, he has never undertaken a recognised course promoted by the Department of Corrections for sex offenders. It is clear that he will need to undertake such a course or courses, and with positive results, before he can be considered for release.

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

[49]   This factor really speaks for itself. It reflects Parliament’s view that a lengthy determinate sentence will be preferable provide the community can be adequately protected from the risk of further sexual offending.

Conclusion

[50]   Taking all of these factors into account, I have no doubt that Mr Utatao presents as a high risk of serious sexual offending upon his release from prison unless significant steps are undertaken to ascertain the causes of his offending and to address them. He has now appeared before the courts for serious sexual offending against three separate complainants. This is a matter of concern given the fact that he is now 59 years of age and, as the health assessors indicate, one would ordinarily expect sexual activity of this type to be declining.

[51]   A disturbing aspect of the present offending is that against CW. It marks a shift away from earlier offending. Past offending has predominantly been against persons with whom Mr Utatao has been in a relationship, or with who he considers he is entitled to be in a relationship. The offending against CW, as I have already remarked, amounts to random offending against a stranger. It is also opportunistic in the sense that he clearly formed the intention to sexually assault CW within a very short space of time. In my view this elevates the level of Mr Utatao’s risk significantly.

[52]   Against that background it is necessary to stand back and determine whether the Court should exercise its discretion to impose a sentence of preventive detention rather than a finite sentence.

[53]   The real risk in the present case is that if Mr Utatao receives a finite sentence, he will take no steps whatsoever to acknowledge or address the causes of his offending. Eventually the prison authorities would have no option but to release him into the community. He would then be released in a state where the issues that drive his offending have not been addressed in any way at all. That, in turn, would leave the community at grave risk of serious sexual and violent offending at his hands.

[54]   These factors persuade me that the only realistic sentence in the present case is one of preventive detention.

Sentence

[55]   On the two charges of sexual violation by rape and one charge of sexual violation by unlawful sexual connection, Mr Utatao is sentenced to preventive detention and is ordered to serve a minimum term of six years imprisonment before being eligible to apply for parole.

[56]   On the charge of doing an indecent act on a young person he is sentenced to two years imprisonment. He is sentenced to two years imprisonment on each of the charges of assault with intent to injure, assault with a weapon and supplying methamphetamine to CW.

[57]   On the charges of indecent assault and threatening to do grievous bodily harm, he is sentenced to one year’s imprisonment.

[58]   All of those sentences are to be served concurrently. It follows that the effective end sentence is one of preventive detention with an order that Mr Utatao serve six years imprisonment before being eligible to apply for parole.

Lang J

Solicitors:

Crown Solicitor, Auckland

Ms M J Dyhrberg QC, Auckland