R v Waretini HC Hamilton CRI 2009-019-8137

[2010] NZHC 1220

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2009-019-8137

THE QUEEN

v

ARTHUR WARETINI

Hearing:         9 July 2010

Appearances: S N Cameron for the Crown

G Boot for the Prisoner

Judgment:      9 July 2010

SENTENCING NOTES OF ELLIS J

Solicitors:     Almao Douch, Crown Solicitors, PO Box 19-173, Hamilton 3244

Gavin Boot Law, PO Box 19043, Hamilton 3244

R V WARETINI HC HAM CRI-2009-019-8137  9 July 2010

[1]      Mr Waretini, you have pleaded guilty to one charge of sexual violation by rape, one charge of aggravated burglary and one charge of indecent assault.  For the avoidance of doubt I now formally convict you of the former two offences.   The maximum penalty for the sexual violation offence is 20 years imprisonment.   The other offences have maximum penalties of 14 years imprisonment and 7 years imprisonment respectively.

[2]      Your guilty pleas were entered before trial and, as I understand it, shortly following the instruction of Mr Boot as your counsel in September 2009.  However it seems that it was only after the Court had ordered you to give an evidential DNA sample following your arrest on the indecent assault that you pleaded guilty to the rape and aggravated burglary charges.   On the other hand, I accept historically it seems you have always pleaded guilty before trial.

[3]      Both Mr Boot and Ms Cameron have made very comprehensive and able submissions before me today.   They are agreed that the main question for me is whether you should be sentenced to preventive detention or to a finite, or fixed, term of imprisonment.  That is why you are being sentenced in this Court, not the District Court.  The secondary question will be the length of time which you must serve as a minimum term of imprisonment.

[4]      I am going to deal first with the facts of the offending for which you are being sentenced because these have a considerable influence on which of the two sentencing options should be adopted and, if you are sentenced to a finite term, the length of that term.

Facts

[5]      The events giving rise to the rape and aggravated burglary charges occurred late in the evening on 3 January 1998 in Christchurch.   The victim was watching television in her home with the back door open because it was a warm night.  You entered her house through the door taking a long carving knife from her kitchen bench as well as a towel from her bathroom.  You confronted her as she went out to close the back door and placed the towel over her face, pulling it tight.  You put your

arm over her neck and told her not to make a noise.   When she struggled you threatened her with the carving knife at her throat.  You then forced her onto the bed in the bedroom.   You would not let her remove the towel or put her arms up to protect her chest.  You pulled up her nightdress and removed her underwear.  You pushed her legs up and she felt the knife at the back of her legs.   You licked her breasts and then raped her.   After you were finished you pressed one hand to the victim’s throat and asked where the money was.  She told you and you then left the house.  Your victim was 67 years old at the time.  It was not until the issue of the DNA sample arose in relation to the indecent assault charge that you were identified as having been responsible for this crime.

[6]      The indecent assault to which you have pleaded guilty occurred in Raglan shortly after midnight on 1 May 2009.   As I understand it, the victim was your former girlfriend.  She was asleep in bed together with her three year old daughter. You gained entry to her house through an insecure ranch slider.  The victim woke up when she felt you lying on top of her and kissing her on the mouth.  She screamed “Get out of my house.  Who are you?”, to which you replied “You know who it is”. When she said she did not know you told her who you were.  The victim slapped you and told you to leave but you continued to try and kiss her so she hit you again.  You tried to kiss her again and she struck you a third time at which point you left.  You have acknowledged you had no authority to enter her house and that she did not consent to being kissed by you.

Preventive Detention Inquiry

[7]      As  I  have  said  Mr  Waretini,  the  main  question  for  me  is  whether  the appropriate sentence is preventive detention or a lengthy term of imprisonment. Mr Boot  will,  I am  sure,  have explained  to  you  that  the purpose of  preventive detention is to protect the community from people who pose a significant and on- going risk.  You have committed qualifying sexual offences and you were over 18 when you committed them.  I am satisfied on the basis of the reports I have read, and from the circumstances of your earlier offending (which I will come back to later)

that you are likely to commit another qualifying sexual offence if released at the expiry date of a finite sentence.

[8]      So you are plainly eligible for a sentence of preventive detention, but there are five mandatory factors I must consider in deciding whether or not to impose that sentence.

Pattern of Serious Offending

[9]      First, and in terms of the existence of a pattern of serious offending, you have a previous conviction for rape.  The circumstances of that offending are set out in the Court of Appeal’s judgment in relation to your appeal against the sentence that was imposed by the High Court for that offence.  The Court of Appeal said:

On Friday 20 November 1987 Waretini left the barracks at Burnham and sent into Christchurch where he arrived sometime after 11 pm.   At about

2.30 am the next morning, after wandering about Christchurch looking for

entertainment, he engaged a taxi to take him to Rolleston.  It was driven by the complainant.  At Rolleston he told the complainant he was camped in a plantation and had her drive him down a forestry track.   According to his statement to the police he then got out of the taxi and said he would get some money from his tent.  She asked for his watch or wallet as security.  Waretini then said he thought he would go around to the driver’s door, open it and “get her money off her.”  The complainant started to speak into her radio. The police statement of facts continues –

The accused grabbed the radio microphone and looped the cord around the complainant’s neck and threatened to kill her if she didn’t drive down the track.

She drove down the track a short distance and stopped.

Here  the  complainant  was  punched  in  the  face  and  had  her glasses removed and jersey ripped, while he removed her pants with the other, before having sexual intercourse with her against her will.

Intercourse duration was short and, when completed, the accused then demanded money from the complainant.

She indicated that the money, a total of $80, was in a wallet in a pocket on the driver’s door.

[10]     The Court of Appeal thought it appropriate to obtain, and received, a victim impact statement from the taxi driver.   In that respect the Court referred to her

ongoing need for counselling.  The Court referred to the emotional harm she suffered as  a  result  of  the  rape,  her  ongoing  fear  of  strangers,  insecurity  and  loss  of confidence.  The Court also referred to the particular vulnerability of taxi drivers as an aggravating feature of your offending.

[11]   In my view there are a number of important similarities between the circumstances of your offending in 1987 and of your offending in 1998.   In both cases you brutally and opportunistically took advantage of a vulnerable woman. Although you did not use a weapon in 1987, you used the cord of the taxi radio as if it were a weapon.  The threat to the driver’s life would have been very obvious to her.  It appears that alcohol may have been a factor in both sets of offending.  In both cases the rape was accompanied by robbery.  Notwithstanding the length of time that has elapsed between the two incidents, there is plainly a pattern here.

[12]     The pattern  that  can  be  seen  in  these  two  very serious  offences  is  only confirmed when regard is had to your other offending including quite recent offending.   Of particular concern to me today is the 1995 charge where the facts suggest that you were found wearing a balaclava and about to break into a woman’s home, knowing she was there alone.   Also concerning is that it seems a similar offence was committed  in 2007.   You also have  committed a number of other assaults against women – one of these was in 2003 when you threatened a 15 year old girl with an air pistol while trying to pull her into your car.

Harm to the Community

[13]     I have already referred to the harm that you inflicted on your first rape victim. Now I refer to the present victims.  I have read their victim impact statements.  They are admirably restrained but the pain and suffering you have caused them is obvious

[14]     The woman you raped in 1998 was, as I have said, 67 years old at that time. Now she is nearly 80.  She has lived the last 12 years knowing that you were still at large.  She also had an awful period of waiting to see if you had infected her with HIV  or  some  other  sexually  transmitted  disease.    She  has  said  that  it  was  as horrifying an ordeal that she could ever have been put through or could believe that

anyone would ever be put through by a stranger in their own home.  She has said that the horror of what happened to her 12 years ago continues in the form of terrifying nightmares, stress and suspicion of any unknown man who passes by her even when she is in her garden, during the day.  The rape robbed her of her peace of mind and confidence in many aspects of her life.  It is only now that she is able to have any peace of mind because she knows that you are in prison.

[15]     The victim of the indecent assault, who presumably you once cared for in some way, has described how she felt assaulted, violated and very frightened, especially as her cellphone was broken at the time and also because she had to protect her three  year  old  young daughter  who was in bed  with her when  you assaulted her.  She now feels uneasy at night and her daughter is scared that you will return some day.

[16]     The harm you have done to these women and to all your victims is harm to society as a whole and Mr Boot accepts on your behalf  that I must recognise that in terms of my decision whether to impose a sentence of preventive detention.

Future Offending

[17]     Thirdly, I must consider the likelihood of similar future offending by you.  As well as what I have said about the pattern that can be seen from your present and previous offending, the reports I have read have assessed you as being a medium to high risk of reoffending in a similar way upon your release from prison.

[18]     Ms Berry, who is a registered clinical psychologist has based her assessment of you against a number of objective standards.  On what is known as the Automated Sexual Recidivism Scale (ASRS) you have been assessed as being in the medium to high risk category as I have said.  You were also found to be in the high risk group on the basis of what is known as the STABLE 2007 approach.  The ACUTE 2007 assessment tool indicates a number of areas of particular concern including your hostility, sexual preoccupation, emotional collapse, collapse of social supports, and substance abuse.   Ms Berry has recommended that you should be referred to the Adult Sex Offender Treatment Programme following your sentencing.

[19]     You  have  also  spoken  to  Dr  van  Zeist-Jongman  who  is  a  consultant psychiatrist.   He also identifies substance and alcohol abuse as problematic and refers to your troubled childhood in which violence was the norm.  He considers that you are of above-average intelligence.   He assesses the risk of further sexual or violent offending as being medium to high.

Efforts to Address Causes

[20]     This brings me on to the fourth factor I must consider, which is the efforts taken by you to address the causes of your offending.

[21]     At the outset it is relevant to note that you have had no specific treatment in the past for your sexual offending.   However Ms Berry has noted that you have generally denied any problem with your sexual behaviour and she thinks it may be unlikely that you would be prepared to undertake treatment specifically addressing sexual deviancy.

[22]     She also has said that you present with a possible responsivity barrier in that although you have said that you are motivated to engage in treatment you have a hostile, controlling nature and are suspicious of other people which may impede your ability to work in a group or in one-on-one individual sessions with a departmental psychologist.

[23]     Ms Berry’s view is, in my opinion, somewhat supported by your history. You have previously had treatment in the form of alcohol and drug programmes. One of these was in 2005 at the Hanmer Clinic.   However, you stated that you disengaged because you found one-on-one sessions intimidating and unhelpful, voicing a preference for group work.

[24]     You have also participated in an intensive 10 week residential treatment programme directed at serious repetitive violent offenders.  The psychological report records that you were compliant with the rules and participated fully.  However, as with another course attended by you in 2004, there were concerns that you had difficulty in a group situation and tended to focus on your own issues.

[25]     There are other similar programmes that  you  have also completed  and  I record the advice earlier today from Mr Boot that you many of these were at your own initiative.  That is a positive sign.  But unfortunately you have always relapsed.

[26]     You have said to Dr van Zeist-Jongman that although you feel positively motivated during the programmes you have attended, the after-care does not last long enough and you eventually slip back into your old patterns after supervision has ceased.   You told the doctor that you would like to spend your time in prison receiving further treatment and you want to join a programme for repetitive sexual offenders as well as having intensive counselling.

[27]     Dr  van  Zeist-Jongman  is  of  the  opinion  that  you  need  more  intensive treatment during your prison term, intensive individual psychotherapy during the first years followed by group therapy for repeated sexual offenders and a drug and alcohol programme near the end of the prison term both to be followed up by long term after-care following release.

[28]     I am prepared to accept that you are willing to continue to attempt to address the causes of your offending.  But I am concerned at the lack of success to date and also as to what Ms Berry has said is your unwillingness to accept that you need to help to address the drivers of your sexual offending.  Nonetheless I do place some weight on the fact that you have not so far had the benefit of specific treatment in that respect, and also what Ms Berry has said about your eligibility for the Adult Sex Offender Treatment Programme.

Lengthy Determinate Sentence

[29]      Fifthly, and finally, I must take into account the fact that Parliament has said that a lengthy determinate or finite sentence is preferable if this would provide adequate protection for society.   I record at this point that the possibility of an extended supervision order (which might weigh in favour of a finite sentence) does not exist in your case because your offending does not meet the statutory criteria.

[30]     Taking into account the statutory purposes and principles of sentencing, the aggravating  features  and  the  totality  of  your  offending,  and  the  very  recent guidelines from the Court of Appeal[1], a starting point for a sentence on the lead or index offence of sexual violation and aggravated burglary would, in my view, be in the vicinity of 12 years imprisonment.  Such a starting point would recognise the fact that your offending that night was not confined to a single act or incident, your use of the knife to frighten and threaten your victim and to get her to do what you wanted, a degree of pre-meditation, the victim’s age and vulnerability, your invasion

of her home and the ongoing harm that she has suffered.

[1] R v AM [2010] NZCA 114.

[31]     After adjustments upwards in recognition of both your past offending and the indecent assault charge and a 30% discount for your guilty pleas, which Ms Cameron agrees would be appropriate, any final, finite, sentence that I would impose would be be a term of imprisonment of ten years.  A minimum period of imprisonment would also be imposed and that was accepted as appropriate by Mr Boot.  I also record that Mr Boot did not appear to differ significantly from the Crown in respect of the appropriate term of any finite sentence should that be imposed.

Conclusion

[32]     I need to say to you Mr Waretini that this has not been an easy decision to make.  I consider that there is a real risk that you will reoffend in a similar way on your release for all the reasons I have given.   For well over 20 years you have offended against women and have caused some of them significant harm.  But on the basis of the reports I have read, and your own attitude, I have some hope of your rehabilitative prospects and that treatment that you receive may be effective.   As well, I bear in mind that the rape for which you are now being sentenced occurred 12 years ago and you have not offended in such a serious way again since then.

[33]     Although Mr Boot, on your behalf, submitted that I should take account of the fact that you were not warned of the possibility of a sentence of preventive

detention when sentenced for rape in 1987, it is plain that no requirement for such a warning exists and is no bar to the imposition of a sentence of preventive detention.[2]

[2] R v Al Baiiaty CA120/05 and R v Freeman [1955] NZLR 718 (CA).

[34]     Having weighed up all the factors, I am going to exercise my judgment in favour of a lengthy finite term of imprisonment with the imposition of a minimum term.  Accordingly, the final sentence Mr Waretini, as I have already indicated, will be  10  years  imprisonment.    That  term  is  made  up  in  the  way  I  have  already explained.  There will be a concurrent sentence of 12 months on the indecent assault charge.

[35]     As I have said, Mr Boot has quite responsibly agreed with the Crown’s submission that a minimum period of imprisonment should be imposed.  In my view the minimum period that is sufficient to hold you accountable for the harm done to the victims and to deter you from continuing to offend and to protect the community is six years.  In other words, you will not be entitled to apply for parole before six years have passed.  The minimum period is intended both to enable and motivate you to deal with the issues that lead to your offending.  I record my anxiety that you do not simply languish in prison without the benefit of the therapeutic intervention that has been identified as necessary and appropriate for you.

[36]     Accordingly,  your  final  sentence  will  be  10  years  imprisonment  with  a minimum period of imprisonment of six years.

[37]     In conclusion, I trust and hope, Mr Waretini, that you understand that today is truly your last chance.   You must know that if you commit any further sexual or violent offences on your release, you will be sentenced to a term of preventive detention.  The prospects of your release on that sentence are very small.  You must take the opportunity that has been offered to you today.

[38]     Please stand down.

Rebecca Ellis J