R v Veve HC Auckland CRI 2005-092-5759

[2007] NZHC 1603

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-092-5759

QUEEN

v

ANDREW TAU VEVE

Hearing:         9 February 2007

Appearances: AM Wharepouri for Crown

P Le’au’anae for Prisoner

Judgment:      9 February 2007

SENTENCING NOTES OF ASHER J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

Panama Le’au’anae, PO Box 76616 Manukau

R V VEVE HC AK CRI 2005-092-5759  9 February 2007

[1]      After a trial in October 2006 Andrew Veve was found guilty of three charges: sexual  violation  by  rape,  sexual  violation  by  unlawful  sexual  connection,  and offering to supply methamphetamine.  Mr Veve was 19 years old at the time of the offending.

[2]      In the early hours of Sunday 27 February 2005, the victim and two female friends were on Queen Street after a long evening, wishing to go home.  The victim was 13.  They had consumed some alcohol.  At the same time, Mr Veve and a friend were driving down Queen Street.  There was a brief conversation between the two groups and the victim and her two friends got into the vehicle.  They were initially heading towards the homes of the victim and her friends, but it seems that with general agreement, they detoured.  They went to Mr Veve’s friend’s home.  There then proceeded to be a degree of interaction between them, which it is not necessary to detail.

[3]      The victim did not participate in any material way in this and she fell asleep in the car.  Some time later Mr Veve woke her and at his invitation she went with him to his address.  He took her to the garage and sleepout at the rear of his parents’ property where he had his bedroom.  The victim went to sleep on the couch in the garage but Mr Veve proposed that she should sleep on the bed while he would sleep on the couch.   She went into the bed and shortly afterwards she was joined by Mr Veve who began making advances on her.   He started trying to remove her clothes.  She resisted and tried to put them back on.  She told him that she did not want  to  have  sex,  but  he  continued  with  his  endeavours.    Eventually  Mr Veve managed to get the victim’s clothes off.  He digitally penetrated her with his fingers despite  her  strong  indications  she  did  not  want  anything  to  happen.    He  then, ignoring her pleas, had sexual intercourse with her.

[4]      Mr Veve subsequently left the garage for a period and the victim was able to escape.  She ran barefoot to a nearby service station and called her father for help. When he came to the service station he found her lying on the floor coiled in a foetal position.  When spoken to by the Police Mr Veve admitted that sex had occurred but asserted that it was entirely consensual.

[5]      In the course of the evening Mr Veve had offered some white powder, which he indicated was methamphetamine, to one of the victim’s friends.  It seems that he did so on the basis that she would have sex with him if he gave it to her.   She declined.      There   is   nothing   to   indicate   that   Mr Veve   actually   had   any methamphetamine available to him.

[6]      The victim impact report gives a picture consistent with the victim’s evidence and demeanour at trial, of an innocent young person, somewhat naive and inexperienced, who has been severely affected by the incident.  She is a modest girl with strong values and has been very upset and humiliated by the events.  Over the last two years up to the trial the incident has hung over her, affecting her self- confidence, her dress, her relationships with others, and her school work.  She shows all the effects of having suffered a severe trauma, although the report does end with an  indication  that  she  is  now  recovering  and  approaching life  in  a  much  more positive way following the trial.

[7]      I have a pre-sentence report.   It is disappointing to note that it was only prepared two days ago after what was, I am informed, a short interview in the remand prison.   It does not give me a great deal of information about Mr Veve’s family and working background.  Despite this, counsel have wished to proceed today and I have been greatly assisted by their full submissions.  Mr Le’au’anae has been able to amplify on matters relating to Mr Veve’s personal circumstances.

[8]      The  pre-sentence  does,  however,  deal  helpfully  and  in  some  depth  with Mr Veve’s attitude to the offending.  It notes that despite, still, at least on the face of things, contending that the sex was consensual, Mr Veve is sensitive to the effect on the victim and does appear to accept to some degree that he was at fault and needs some assistance.  He is assessed as a medium risk of reoffending.  He has a small offending history and no convictions of any relevance to this sentencing process.

[9]      As I have indicated, I have been greatly assisted by counsel’s submissions. Both Mr Wharepouri for the Crown and Mr Le’au’anae for Mr Veve propose that a starting point of seven years is appropriate.

[10]     I  turn  now  to  general  sentencing  considerations.     The  lead  charge  is undoubtedly the count of sexual violation by rape.  The maximum penalty that can be imposed is twenty years’ imprisonment under s 128B(1) of the Crimes Act 1961. In sentencing for rape there is a particular need to denounce an offender’s conduct, to promote in the offender a sense of responsibility for the harm done, and to deter others from committing the same or similar offences.  There is a need to consider the effect of the offending on the victim.

[11]     In R v A [1994] 2 NZLR 129, a case that is still regularly applied in relation to rape sentences, it was stated that eight years should be said to be the starting point when the charge is being contested. Since that case the Court of Appeal has directed in R v Taueki [2005] 3 NZLR 372 (CA) that a starting point should be fixed taking into account all matters relating to the offending, and following that process aggravating and mitigating features relating to the offender personally should be applied. I will apply the starting point in R v A bearing in mind this matter and I will adopt the general sentencing approach set out in R v Taueki. NZLR 372 (CA).

[12]     I turn then to matters relating to the offending itself.  The most serious matter is the age of the victim.  She was 13, and has unsurprisingly been seriously affected. However, I note a number of matters that, while not diminishing the traumatic effect on the victim, are special features which might justify a lowering of the starting point.

[13]     I do not consider that the offending was in any way premeditated.  It did not involve any elements of violence or threats.   I do not consider that you and your friend were riding around as sexual predators.  Rather, you were two young men who met up with some young women (as they appeared to be to you), and proceeded to interact with them for most of the evening on a consensual basis.  The victim and her friends were at least slightly drunk.  When one of the victim’s friends rejected your advances when you were alone together, you accepted that and took no steps to force yourself on her.  I have no doubt that you were hoping for consent to sex when you approached the victim, and may indeed have anticipated it.  Where you went terribly wrong  was  when  you  ignored  her  objections  and  protestations  and  forced  the removal of her clothes and then carried on to have sex with her.  While having an

awful effect on the victim, this is not the most serious factual sequence in a rape charge.

[14]     I have considered the decision of R  v Peachey (CA92/01, 17 July 2001), which has some similarities to the present case.  There the ages of the parties and the background circumstances were similar.  The offender commenced having sex while the victim was asleep and then when she awoke and protested continued again after she had passed out, and when she woke a second time ultimately forced himself upon her.  A starting point of eight years was accepted as appropriate in that case.  I do not consider the facts of this case as quite as serious as they did not involve the deliberate exploitation of a sleeping woman.

[15]     In the end, having regard to all these matters relating to the offending itself, I

consider the appropriate starting point is seven and a half years’ imprisonment.

[16]     I do not consider that any uplift is necessary for the other sexual violation charge, the facts of which meld with the rape charge.  I also do not consider that the offer to supply methamphetamine on an overview increases the seriousness of the offending in any substantial way.  I see the offer of non-existent methamphetamine as part of the general bravado of the night which led to the rape.  Taking into account totality principles I consider that a modest concurrent sentence is all that is required, and I do not consider that any uplift is necessary.

[17]     I now turn to matters relating to you personally.  There are three matters in your favour.

[18]     The first is your youth.   You were 19 at the time and, I think, relatively immature.

[19]     The second is your family circumstances.  I acknowledge the presence here today of your mother and your grandfather.  Your mother was present right through the trial.  You undoubtedly come from a very supportive and loving family, and I have the strong impression that you are a participant in the life of your family and

your community.  Both your parents are hard working and undoubtedly very affected by what has happened.  Your father is ill in hospital.

[20]     The third matter I take into account is your relative good character.  You do have some previous convictions for taking a motor vehicle and unlawfully getting into a motor vehicle, but the sentences indicate that they were not of a particularly serious order.  You still have some outstanding fines.  As against that you have no convictions that indicate in any way a propensity towards sexual offending or violence.  Until your offending you had been in regular employment for three years. You have held other jobs.  I am prepared to give you some credit for good character.

[21]     There is one further matter I do note.  While it cannot be said that you are remorseful   in   the   sense   of   fully   acknowledging   wrongdoing,    I   accept Mr Le’au’anae’s submission that you show some insight into what you have done and some sympathy for the victim.

[22]     There is a limit to the amount of weight I can give to these matters relating to you personally.  In the end I propose deducting one year from your sentence so that your overall sentence will be one of six and a half years’ imprisonment.

[23]     Mr Veve, on the charge of sexual violation by rape you are sentenced to a term of imprisonment of six and a half years.  On the charge of sexual violation by unlawful sexual connection you are sentenced to a term of imprisonment of three years, that term to be concurrent.    On the charge of offering to supply methamphetamine you are sentenced to one month’s imprisonment, that sentence to be concurrent.   With the consent of the Crown I remit the existing fines owed by you.

[24]     Mr Veve, in the course of what might have appeared to you to have been a ordinary night on the town you did a terrible thing.   I think you have some appreciation of that.  You must learn to control yourself, and I hope that you do get some counselling and work on these issues.

[25]     I do not believe you are a truly criminal type, and I regard the fact that you have to be sentenced in this way as extremely sad.   I think you have many good qualities, and the ability to hold a job and to have a good life.  You must pay a price for what you did and that is why this sentence has been imposed.  But when you get out I do hope that you work on the good qualities that you have, take up any sporting opportunities that are available to you, and put this behind you.

………………………..

Asher J