R v Warwood
[2023] NZHC 1065
•5 May 2023
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2021-076-000105
[2023] NZHC 1065
THE KING v
BRENDON LESLIE WARWOOD
Hearing: 5 May 2023 Appearances:
S M H McManus for Crown T J Jackson for Defendant
Sentencing:
5 May 2023
SENTENCING NOTES OF OSBORNE J
[1]Mr Warwood, I am going to ask you to stand initially, please.
[2] Brendon Leslie Warwood you appear for sentence in relation to the following charges to which you pleaded guilty on 8 November 2022:
(a)male assaults female (a representative charge);1
1 Crimes Act 1961, s 194(b) - maximum penalty of two years’ imprisonment.
R v WARWOOD [2023] NZHC 1065 [5 May 2023]
(b)three charges of sexual violation by unlawful sexual connection (one of which is a representative charge);2
(c)two charges of strangulation;3
(d)two charges of threatening to kill;4
(e)indecent assault;5
(f)sexual violation by rape;6 and
(g)intentional damage.7
[3] You committed the crimes in the 11-month period from March 2020 to January 2021.
[4] I am shortly going to ask you again to be seated while I explain the decision I am reaching. My explanation will take some time and I will indicate to you towards the end when you will need to stand again.
[5]Please be seated now.
The offending
[6]You have agreed with the summary of facts to which I will now refer.
[7] In around March 2020 you, Mr Warwood, began a relationship with the victim who I will refer to as “K” in my judgment. This relationship ended on 21 January 2021, with the offending that I will come to, and was incredibly abusive and depraved. The abuse was both physical and psychological.
2 S 128(1)(b) and 128B - maximum penalty of 20 years’ imprisonment.
3 S 189A(b) - maximum penalty of seven years’ imprisonment.
4 S 306 - maximum penalty of seven years’ imprisonment.
5 S 135 - maximum penalty of seven years’ imprisonment.
6 S 128(1)(a) and 128B - maximum penalty of 20 years’ imprisonment.
7 S 269 - maximum penalty of seven years’ imprisonment.
[8]You have pleaded guilty to 11 charges. I will briefly summarise each in turn.
[9] The first charge of male assaults female (a representative charge) covers the period from 1 March 2020 to 17 January 2021. You subjected K to physical and mental abuse throughout the course of your relationship. Typically, the physical abuse was punches to K’s chest or ribs, accompanied by your telling her that she deserved the assaults. On one occasion, you and K were at home. You became angry, you smashed K’s lunch plate and punched K in the eye. You stopped when a friend pulled you off
K. On a later occasion you were at a friend’s house with K and others, socialising. Following some tension, K left the room. You entered that room and punched K in the face. You split open her tongue. The assault again finished only when your friend intervened to pull you off K. K received medical treatment for her wound.
[10] Charge two (sexual violation by unlawful sexual connection) occurred on a date between 1 March 2020 and 30 December 2020. You put on a latex glove. You began masturbating K, initially with her consent. But you then put your fist inside her vagina, without her consent. She heard a loud popping sound as the wide part of your fist entered her vagina.
[11] Charge three (strangulation) occurred between 1 November 2020 and 17 January 2021. K was at home with you in the master bedroom. You told K she needed to “shut her fucking mouth” or the Mongrel Mob would “put her in a hole”. You then put her in a headlock, choking her until she became unconscious. The strangulation caused her to urinate. You did all this while two children, aged two and three, were in the room.
[12] The events the subject of the next series of charges all occurred on Sunday 17 January 2021 from around 2 pm. You were at K’s home.
[13] Charge four (threatening to kill) occurred around 2 pm. You told her she knew too much and you were going to kill her.
[14] Charge five relates to strangulation. You put K in a headlock until she lost consciousness. You then threw her to the floor. You threw her around the kitchen,
breaking a table. You then placed her in another headlock, choking her until she lost consciousness again. You caused her to urinate and defecate.
[15] You then committed an indecent assault (the subject of charge six). You struck K in her vagina. You told her she “deserved this”.
[16] Charges seven, eight and nine (sexual violation by rape and two charges of sexual violation by unlawful sexual connection) also occurred during the same four-hour period. You initiated sexual conduct, initially consensually. You then acted without K’s consent. You forced her legs open. You rubbed the outside of her vagina with a pot-scouring pad. You inserted the scourer into her vagina. You scrubbed the inside of her vagina with the scourer for approximately 10 seconds. You then took a bottle of vinegar. You poured it both on the outside and inside of her vagina. You then forced your penis inside her vagina. Once you were finished, you again poured vinegar on the inside and outside of her vagina. You then again rubbed her vagina with the scourer. You repeated this. You then took K’s hairbrush and rubbed the bristles on the outside of her vagina. You threatened to use the brush inside her vagina. You then used the scourer and vinegar again, repeatedly. During this prolonged event, you were masturbating yourself. You then took K by the hair, forcing her to lick your testicles and to masturbate you.
[17]This series of horrific assaults and behaviour lasted some four hours.
[18] Later that day, you committed the intentional damage and threatening to kill which are the subject of charges 10 and 11. K’s 10-year-old daughter arrived to visit. She saw her mother was injured. Her mother was looking at her cell phone. You grabbed the phone. You smashed it. You told K “if you or the kids go to the Police, I will kill you”. It was K’s 10-year-old daughter who then ran from the house to initiate Police intervention that day.
[19] K received extensive injuries from the assaults that day — multiple abrasions around her head, her neck and her back; two abrasions in her mouth; multiple bruises on her back and on her legs; pain and swelling in her throat; significant injuries and
pain to her genitalia, including a three-to-four centimetre tear. She was hospitalised overnight.
Impact on your victims
[20] I was initially informed by the Crown that, despite attempts to obtain an impact statement from K, she had not given such a statement. I found it not at all surprising that K had not brought herself to speak about the violence and harm you inflicted on her in that 11-month period. She must have suffered horribly and must have feared for her life on at least two separate days. The harm you inflicted on her must have been agonising each time and she is likely suffering long-lasting effects, both physically and psychologically.
[21] This morning the Crown has provided a statement which was taken down by a Police Officer from K but which K was not prepared to sign. I therefore treat it with care as K has not formally adopted it. It is sufficient to say that K’s reference in that statement to your torturing her is entirely consistent with the facts.
[22] There are also, tragically, your secondary victims, K’s children. The presence of two children at the first incident of strangulation and the presence of K’s 10-year-old daughter, towards the end of the prolonged events on 17 January, must have been horrific and scarring for them also. I note the statement that K’s daughter has nightmares of you getting her for contacting the police. The involvement of the children is a significantly aggravating aspect of your offending.
Sentencing
Starting point
[23] I will explain how I am going to arrive at an overall starting point of period of imprisonment to reflect your offending.
[24] First, as recognised as appropriate by both counsel, I am going to treat the offences of 17 January as a group of events to be looked at together. I will consider the various aspects of your crimes that day and reach a starting point, adjusted for totality, for all the offending on 17 January.
[25] I will then return to your earlier crimes, before 17 January, to identify starting points for those, but will again adjust my figures to reflect the totality of your offending over the 11-month-period.
The 17 January 2021 crimes
[26]These are what I will call your lead offending.
[27] The maximum penalty for rape and other violation by unlawful sexual connection is 20 years’ imprisonment.
[28] The Court of Appeal’s tariff judgment in R v AM applies to the lead offending.8 That decision provides two sets of guidelines. The first is for sexual violation where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects. The second set of guidelines relates to where another form of unlawful sexual connection is the lead offence. In AM the Court identified matters that go to indicate how culpable (that is, how blameworthy) either type of offending was.
[29]I will refer to the four factors that I consider apply to your offending.
[30] First, violence. Mr Jackson, on your behalf, has observed that there is violence inherent in any act of sexual violation. While that is true, the violence you committed was extreme. The Court of Appeal has recognised that there will be violence normally associated with sexual offending, including the like of pushing or pulling a victim to the ground or holding them down.9 Your conduct, Mr Warwood, was far removed from the sort of violence that might be considered usual in any act of sexual violation. I can find no better adjective than it was extreme. Put another way, it amounted to torture.
[31] Secondly, harm to the victim. I have described the physical injuries you inflicted on K on 17 January. As recognised by the Court of Appeal, cuts and bruising are indications that the offending is more serious.10 I have no material on the extent
8 R v AM [2010] 2 NZLR 750 (CA).
9 At [38].
10 At [44].
of psychological harm K suffered. But, as I observed, both the physical and psychological effects of what you did on 17 January 2021 must have been agonising and are likely to be enduring. The harm to K’s 10 year old daughter is, as I have already indicated, a seriously aggravating aspect of the harm you have caused.
[32] Thirdly, the scale of your offending.11 The initial assaults lasted for some four hours, in the course of which you resorted to varied and repeated attacks. Your conduct was cruel and callous.
[33] The use of the scouring pad, the vinegar, and hairbrush were each separately, and when taken together, depraved to a degree rarely seen.
[34] Fourthly, the degree of violation. The extent of violation was high. The Court of Appeal has referred to the use of a fist as increasing the seriousness of a violation by way of example.12
[35] It has been suggested for you that a consideration arises that might mitigate or render less serious your offending. The fact there has been consensual sexual contact immediately before an offence occurs will, from time to time, be a relevant factor. It may indicate the possibility of a mistaken belief or consent.13 But nothing in your behaviour that day suggests you had any consideration of K’s wishes or her wellbeing. The events that day started with you threatening to kill K. The consensual activity occurred only after an act of strangulation. Your prolonged and varied offending cuts across any suggestion that the offending should be viewed as somehow less serious because your victim may have consented to a degree of sexual contact in the course of your offending that day.
[36] Against the background of those factors, I then turn to the sentencing bands that are identified in R v AM for crimes where sexual violation by rape or violation involving objects is the lead offence. The bands and the indicative starting point sentences are:14
11 At [47]. See also Sentencing Act 2002, s 9(1)(e).
12 At [52].
13 At [53].
14 At [90].
(a)band one – six to eight years’ imprisonment;
(b)band two – seven to 13 years’ imprisonment;
(c)band three – 12 to 18 years’ imprisonment; and
(d)band four – 16 to 20 years’ imprisonment.
[37] Band one is irrelevant here — it applies to offending at the lower end of the scale where aggravating features are either not present or are limited.15
[38] Band two is the appropriate band for levels of violence and premeditation that are, in relative terms, moderate. It is appropriate for cases that involve two or three of the aggravating factors to a moderate degree.16
[39] Band three is for offending accompanied by aggravating features at a, relatively speaking, serious level. It is appropriate where there are two or more factors increasing culpability to a high degree, or more than three of those factors to a moderate degree. Particularly cruel, callous or violent single episodes of offending involving rape fall into this band.17 In R v AM the Court of Appeal identified the case of R v Singh as exemplifying band three.18
[40] Band four, as discussed by the Court of Appeal in R v AM, is not applicable to the 17th of January.
[41] The Court of Appeal, in R v AM, discussed a number of cases that fall within each of the four bands, several of which have been referred to by counsel in their written submissions. I have reviewed those cases. I will summarise them in the Schedule I attach to the typed version of these remarks. There are additional cases which also provide some guidance and I will again include those in my Schedule.
15 At [93].
16 At [98].
17 At [105].
18 R v Singh CA 348/05, 26 April 2006 – “an example of cases at the lower end of rape band three” per R v AM, above n 8, at [105].
[42] On my assessment, your lead offending on 17 January 2021 falls somewhere between the lower end and the middle of band three. While all cases are fact specific, I observe that, in R v Singh, this Court upheld a starting point sentence of 15 years in relation to offending that I consider marginally more culpable than your lead offending.
[43] On your lead offending on 17 January 2021, that is sexual violation by rape and object, the appropriate starting point is a sentence of 13 years’ imprisonment.
[44] In establishing that starting point sentence, I have not overlooked Mr Jackson’s submissions. He submitted that drug use may have warped your understanding of the limits and effects of your actions. Under the Sentencing Act 2002, I must not take into account by way of mitigation the fact that you were, at the time of committing your offences, affected by the voluntary consumption or use of any alcohol or any other drug.19 I will return when considering matters relating to your personal background, to what has been said about your drug use.
[45] So, to recap, I find the appropriate starting point in relation to the lead offending on 17 January 2021 — that is the three sexual violation crimes — to be a sentence of 13 years’ imprisonment.
[46] That leads me, in relation to 17 January, to adjust the starting point on other, different aspects of your offending. I refer in particular to your threat to kill K and to your strangulation of K before you began your indecent assaults on her. And I refer also to your conduct later in the day involving particularly the threat to kill made in the presence of K’s 10 year old daughter. So, turning to your strangulation of K.
[47] The Court of Appeal in Shramka v R has emphasised the need for evaluation of the facts.20 The Court observed it is the intensity of the factor, in particular, the nature of the violence deployed, and the harm caused to the victim that requires careful assessment. The Court of Appeal identified eight relevant aggravating factors relating to the crime of strangulation.21
19 Sentencing Act, s 9(3).
20 Shramka v R [2022] NZCA 299 at [44].
21 At [42].
[48] Here, it is an appalling aspect of your strangling K that during the initial period of your 17 January assaults you strangled her, causing her to lose consciousness, not once, not twice but three separate times. It is seriously aggravating that upon regaining consciousness the second time, K found that you had caused her to urinate and defecate due to the strangulation. It is a further aggravating feature that the third act of strangulation was accompanied by your threat to K that she “had to go” and that you were going to kill her. I have no doubt that K will have suffered enduring psychological harm through the effects of being repeatedly strangled, passing out and losing continence.
[49] The maximum sentence for the crime of strangulation is seven years’ imprisonment. In the terms adopted by the Court of Appeal in Shramka, I view your strangulation as of moderate rather than lower level. Your offending was more culpable than that of the defendant in T v Police, where the starting point was three years’ imprisonment.
[50] An appropriate starting point for your acts of strangulation on 17 January 2021 is three years six months’ imprisonment.
[51] I come now to your other crimes on 17 January. I view the smashing of K’s cell-phone as a part of your second threat to kill her. This was behaviour distinct from that which had preceded it that day, and was clearly intended to stop K from reporting your crimes to the Police and this prosecution resulting.
[52] In other words, this later threat to kill was not like those before it that day in the context of your other violence towards K — rather, it was an after-the-event exercise to ensure that you would not be held responsible for your offending.
[53] The maximum sentence for threatening to kill is again one of seven years’ imprisonment. Given the two threats to kill occurred within the same four hour period, I will deal with them as one.
[54] The particularly aggravating features of the second threat were the attempt implicit to pervert the course of justice and the fact that you brought K’s 10 year old daughter into your threat, by also seeking to dissuade her from going to the Police.
[55] Before considerations of totality arise, your threat to kill calls for a starting sentence of 18 months’ imprisonment.
Applying a totality assessment to your 17 January offending
[56] The various aspects of your 17 January offending, on my finding, would call for starting point sentences of:
(a)13 years for the lead offending;
(b)three years, six months for the strangulation offending; and
(c)18 months for the two threats to kill.
[57]That would be a total of 18 years’ imprisonment.
[58] That figure needs to be adjusted downwards to reflect the inter-related nature of the offending and to achieve a starting point sentence that is appropriate to reflect the totality of your offending on that day. To reflect totality, the total adjusted starting point sentence in relation to 17 January will be 15 years.
Your offending between 1 March 2020 and 17 January 2021
[59] We are now talking about three earlier, but distinct crimes. I will deal with them in the order they occurred.
[60] The first is a representative charge of male assaults female being your physical and psychological abuse of K during your relationship. I have already referred to the detail relating to that charge. The maximum penalty for male assaults female is two years’ imprisonment.
[61] A starting point sentence of nine months’ imprisonment is appropriate to reflect the extent of your offending on that charge.
[62] The second charge relates to the occasion on which you sexually violated K by putting your fist inside her vagina.
[63] R v AM provides guidelines for that type of crime also, again by reference to bands of seriousness. The three bands are:22
(a)band one: two to five years’ imprisonment;
(b)band two: four to ten years’ imprisonment; and
(c)band three: nine to 18 years’ imprisonment.
[64] As with rape, the maximum penalty for this type of violation is 20 years’ imprisonment.
[65] The same culpability assessment factors as apply to rape also apply to this offending.23 The most culpable factor of your 2020 sexual violation was that it was a fist you used to violate K.24
[66] Having regard to the bands in R v AM, I must place this offending in band one (towards the top of the band given the degree of violence).
[67] An appropriate starting point sentence would be three-and-a-half years’ imprisonment.
[68] I come then to the first occasion on which you strangled K. It shares similarities to the acts of strangulation on 17 January 2021.
22 R v AM, above n 8, at [113].
23 At [34]–[64].
24 At [52].
[69] The most notable aggravating features of that strangulation were the threats, including of death, that accompanied the strangulation; causing K to become unconscious and incontinent; and carrying out this brutality in front of two infants. Enduring psychological harm to K and possibly those infants was inevitable.
[70] A starting point sentence of two years six months’ imprisonment would be appropriate.
Totality
[71] Bearing in mind the need to have regard to the relationship between the total sentence and the totality of offending, it is not simply now a matter of adding the three starting point sentences to the overall starting point of 15 years for the 17 January offending.
[72] Having regard to the totality of your offending from March 2020 to 17 January 2021, I find the appropriate total period of imprisonment you should serve, on a starting point basis, would be 17 years and six months’ imprisonment. That is an uplift of two years and six months’ imprisonment to the starting point for the 17 January crimes.
[73] I agree with Ms McManus that it is helpful having reached that point to adopt as a cross-check the suggested sentence range for what the Court of Appeal identified in R v AM as rape, band four. Rape band four, is reserved for the most serious of rape offending, including repeated rapes of one or more family members over a period of years. The distinction here is that your offending period was over a shorter time. But, that said, the Court is also sentencing you on other related but distinct types of offending of a serious nature. The fact that the starting point sentence I have calculated (17 years, six months) falls within the range of rape band four reinforces the appropriateness of my starting point.
Matters of aggravation or mitigation personal to you
[74] I now move beyond the circumstances relating to the offending itself. I must consider whether there are matters personal to you that make your offending either more or less blameworthy.
Your criminal history
[75] You have a number of previous convictions. They are distinctly different to the present offending. Ms McManus has responsibly accepted that no uplift is required to reflect your criminal history, a conclusion which I adopt.
Offending while on bail
[76] Your offending occurred while you were on bail in respect of other matters. I accept Ms McManus’ submission that I should make a modest uplift to reflect this factor. I will apply an uplift of three months’ imprisonment.
Your pleas of guilty
[77] You are entitled to credit for your guilty pleas, with the extent of credit to have regard to the point at which you pleaded guilty.25 On your behalf, Mr Jackson emphasises that through your guilty pleas your victims were spared from what he describes as a “very difficult, humiliating, trial”. On the other hand, your pleas came well after the charges were laid against you and were made a short time before the trial was to commence.
[78] In my view, a credit of 15 per cent could be seen as generous but I adopt that figure suggested by Ms McManus.
Remorse
[79] Mr Jackson submits that you are entitled to a discrete credit for remorse of up to five per cent.
25 Hessell v R [2011] 1 NZLR 607 (CA).
[80] The Court has two reports that are relevant in this regard. First, the pre- sentence report from your Probation Officer. Secondly, a cultural report prepared under s 27 Sentencing Act by Tara Oakley. Ms Oakley interviewed you for two hours (as well as interviewing others). Mr Jackson on your behalf has suggested that the cultural report is indicative of both remorse and insight. I have carefully read the report. I recognise that the report writer observed you appeared to be “highly remorseful of your offending” and that you clearly recognised the harm that your behaviours had caused K. Further, that you have been making remarkable progress in self-development and that there had been epiphanies through this process. All those things said, I find little or no evidence in the reports to indicate any frank acknowledgement by you of the fact that you alone bear responsibility for your criminal offending. Your indication to the report writer, when discussing the summary of facts, that what you call your “sexual aggression” was “nothing compared to some of the stuff you and K got into” completely misses the point that your conduct involved criminal abuse and subjugation of your partner whereas any other things that the two of you did voluntarily in your relationship were for the two of you to decide on. In light of all I have read, I am more influenced by the observation of your Probation Officer that you have “limited insight into your violent and sexual offending”. You have accepted for your sentencing the Summary of Facts. But from your discussions with the Probation Officer you still take issue with what you call the “repetition of the events” and you take only “partial responsibility” for the violence you inflicted on K. You stated to the Probation Officer that “it’s awful to say but a small part of me still blames her”.
[81]You are entitled to nothing by way of credit for remorse.
[82] I do not overlook a two-page letter that Mr Jackson handed up this morning which is a statement as I understand it that you would wish to have passed on to K. It comes against a background of the in depth discussions that both report writers had with you and I find nothing in the content of statements received today to cut across the conclusions I have reached in the light of the reports.
Matters relating to your personal background
[83] In addition to information contained in the pre-sentence report and the cultural reports, the Court has a drug and alcohol assessment report prepared by Shane Pleasance.
[84] From the information contained in those three reports, Mr Jackson has submitted there are two streams running through your upbringing and development that led to a reduction in your culpability for the offending. The first, relating to your upbringing lies in what is said to be an exposure to deviant sexual behaviour from the time you were 13 years old and in influences that caused you to become normalised to the “subjugation of women”. The second stream relates to a methamphetamine addiction, Mr Jackson submitting that your violence is closely related to that addiction.
[85] The cultural report writer in particular deals with what I have called the first stream — the childhood influences that shaped you. Mr Pleasance reports particularly on matters relating to methamphetamine, with the cultural report writer also commenting on that. The cultural report writer identifies as the first of the “operative or proximate factors of causation” a matter that she heads as “sexual addiction and deviance run rampant”. She suggests that you were exposed to and involved in deviant sexual behaviours from the age of 13. She says that these behaviours were also role- modelled to you. I have carefully read the body of the report. You are reported as having become sexually active, with two girls in particular, from the time you were 13, moving into the family home of the second girl when you were 16. Up to that point of the chronology, there was no discussion of deviant sexual behaviour.
[86] Later in the report, however, it is stated that during your youth you lived with a man, a “father figure”, who demonstrated sexually deviant behaviours every day. This was the father of the second girl I have referred to. This is said to have “further bolstered your predisposition to high-risk, deviant sexual activity”. The report identifies that when you moved into your girlfriend’s home at aged 16, and were then exposed to “all manner of criminal and anti-social behaviours” but that substantially post-dates the period when you were 13.
[87] I find insufficient basis in the report to conclude that you were so exposed to what you have described as “deviant sexual behaviours” at a young age as to have had that as a operative or proximate cause of your subsequent offending against K. I further observe that while deviant behaviours you may have come to practise as a young man might have some link, as the report writer indicates, to later views about power and control, the reports do not establish any link from enjoyment of such practices to your enforcement of non-consensual sex and other outright violence.
[88] The second aspect of your background identified by the s 27 report writer is headed “the normalisation of the subjugation of women, violent-male role-modelling”. This is expressed to relate to your “father-figure” who appears to have come into your life when you were 16. The exposure you had to the subjugation of women within the gang culture is said to have normalised your values and beliefs as to how women should be treated. The report writer quotes an academic dissertation in which it has been observed that “violence, intimidation and abuse are the primary means by which men socialise women into gangs”.
[89] I appreciate that having a gang member as a father figure in your life from the time you were 16 will have significantly exposed you to gang attitudes and may even have led you to follow your father figure’s approach and keep his daughter “in line” as you have described it to the report writer. That said, there is no suggestion in the report that you committed violence towards or embarked upon non-consensual sex with that girlfriend during the years that you were together. The background to which reference is made does not explain to my satisfaction the nature and extent of offending that you felt free to perpetrate on K when you were 29 years’ old. On repeated occasions your conduct towards K started not in the context of a second encounter but started instead with apparent anger and threats to kill.
[90] In short, I am not satisfied that the offending for which I am sentencing you was operatively or proximately caused by the influence of the “father figure” you acquired.
[91] In terms of the matters of background raised on your behalf, that leaves the issue of methamphetamine addiction.
[92] The s 27 report writer refers to this under a heading “Methamphetamine intoxication increasing sexual proclivities and violent responses”.
[93] You report having begun to use methamphetamine at the age of 17, then to have had a two year break from the drugs, and then an on and off relationship with the drug in the following years. You report that it was after the death of your father figure when you were aged 25, that you began to smoke a lot of methamphetamine. The cultural report writer records that your methamphetamine use appeared to contribute to an escalation of your sexual needs. You are said to have engaged through that period in overtly sexual and deviant behaviours.
[94] Mr Pleasance’s drug assessment report does not seek to link your methamphetamine addiction to your sexual attitudes and proclivities but his history of your use of methamphetamine is consistent with that set out in the cultural report.
[95] The cultural report writer, however, goes on to opine that it is likely your prolonged use of methamphetamine contributed to your violent “responses” to K. The writer refers to you, presumably on your own reporting, as having been under the influence of a vast amount of methamphetamine at the time of your offending. I do note that this is at odds with the information you yourself provided to Police when you suggested that you were not on drugs at the time, but that K was. But I recognise that your statement then may have had more to do with saving your own neck.
[96] The voluntary consumption of methamphetamine, as I have already explained, is something I must not take into account by way of mitigation in relation to the offending itself in January 2021.26 Parliament has determined that, for sentencing purposes, you cannot point to your state of self-induced intoxication, as a mitigating factor of that offending.
[97] That said, I recognise from the reports received that after you first tried methamphetamine at 17 you appeared to have become addicted to it at around age 25. The Crown responsibly recognises that your methamphetamine addiction has justified a credit by way of some recognition in terms of the personal background that you have
26 Above [44], see Sentencing Act, s 9(3).
and I take into account that the addiction appears to have been deep-seated at least since you were 25. A recognition in this regard also takes into account the positive feedback that has come from the report writers as to the steps you are taking in relation to escaping from the addictive situation into which you had been placed. I find a credit of 10 per cent to be justified on account of your personal background.
Final calculation of the sentence
[98] I will now arrive at the calculation of the total period of imprisonment you should serve.
[99] From my adjusted starting point of 17 years and six months’ imprisonment, I deduct for your guilty plea two years and eight months’ imprisonment (15 per cent) and for matters of personal background, 21 months’ imprisonment (10 per cent) but I also add three months’ imprisonment on account of your bail breach. The total end sentence will therefore be 13 years and four months’ imprisonment.
[100] When I read out your sentence to you shortly, I will need to impose separate sentences on each charge. They will be concurrent sentences — that is, they will all be served at the same time.
[101] In other words, the total length of sentence, imposed will be one of 13 years and four months.
Minimum period of imprisonment
[102] The Crown seeks the imposition of a minimum period of imprisonment. Mr Jackson, on your behalf, opposes that.
[103] Under s 86 Sentencing Act, the Court has power to impose a minimum period of imprisonment that is longer than the period after which you would otherwise become eligible for parole under the Parole Act 2002.
[104] I may impose a minimum period of imprisonment if I am satisfied that the non- parole period is insufficient for any of the following purposes:27
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[105] The minimum period of imprisonment, if imposed, is not to exceed the lesser of two-thirds of the full term of the sentence or 10 years.28
[106] When considering whether your offending was sufficiently serious as to make the normal parole period insufficient to meet the specified purposes, the central consideration is your culpability, your blameworthiness.29
[107] I am to ask myself whether there are aspects of your offending that set it apart from other types of similar offences so that the normal minimum non-parole period would be inadequate for the purposes of punishment, denunciation or deterrence.
[108] By reason of the matters I have already identified, I am satisfied that the usual non-parole period is insufficient for the purposes of holding you accountable, of denouncing your offending, and protecting the community. My conclusion is reached having particular regard to the extended nature of your offending; the distinct occasions of sexual violence; the distinct occasions of strangulation to the point that K lost consciousness and control of her bodily functions and the representative nature of the charge of male assaults female covering an 11-month period. I also consider the callous nature of the offences committed during the four hour period on 17 January 2021 sets your sexual violation offending in particular apart from other offending of its type.
27 Sentencing Act, s 86(2).
28 Section 86(4).
29 R v Brown [2002] 3 NZLR 670 (CA).
[109] The Crown has submitted that a minimum non-parole period representing one- half of your total sentence might be appropriate.
[110] Having regard to the individual sentences I will be imposing, I consider the appropriate non-parole period is 60 per cent of your sentence on the charge of sexual violation by rape. That is, the minimum period of imprisonment will be seven years seven months.30
Sentence
[111]Mr Warwood, please stand.
[112]Brendon Leslie Warwood, I sentence you as follows on the following charges:
(a)Charge 1 — (male assaults female) (a representative charge)): six months’ imprisonment;
(b)Charges 2 — (sexual violation by unlawful sexual connection): three years’ imprisonment;
(c)Charge 3 — (strangulation): two years’ imprisonment;
(d)Charge 4 — (threatening to kill): one year’s imprisonment;
(e)Charge 5 — (strangulation): three years’ imprisonment;
(f)Charge 6 — (indecent assault): one year’s imprisonment;
(g)Charge 7 — (sexual violation by unlawful sexual connection): 13 years and four months’ imprisonment;
(h)Charge 8 — (sexual violation by rape): 13 years and four months’ imprisonment;
30 Initially stated as nine years but corrected to seven years seven months.
(i)Charge 9 — (sexual violation by unlawful sexual connection): nine years’ imprisonment;
(j)Charge 10 — (intentional damage): six months’ imprisonment;
(k)Charge 11 — (threatening to kill): one year’s imprisonment.
[113]All charges are to be served concurrently.
[114] On Charge 8 a minimum period of imprisonment of seven years and seven months is imposed.
[115]Please stand down.
[116] Earlier I said to you when I was talking about 60 per cent as the minimum period of imprisonment I think I said to you, Mr Warwood, the minimum period would be nine years. That was an error as you will have gathered. The agreed figure is seven years and seven months. I apologise for that error.
Osborne J
Solicitors:
Crown Solicitor, Timaru JMJ Lawyers Ltd, Timaru
SCHEDULE 1 — CASE SUMMARIES
A Starting point analysis
[1] R v Campbell.31 O, a 34-year-old male, invited V, a 14 year old boy to his home. What followed included O sexually assaulting and body piercing V. The next day, O pushed V down on a bed and tattooed him around the genital area using a home tattoo gun. O then restrained V in a wardrobe using shackles and chains before striking V with a length of cylindrical rubber. He poured hot wax over V. After leaving him restrained in the wardrobe for an hour he assaulted him again. The offending continued on to the next night and included O holding a hot branding instrument against V. This continued for two more days until V managed to use the telephone and summon help. Starting point: 16 years.
[2] R v Tipene.32 O entered the female and male V’s tent with a knife. He awoke them and then forced his penis into the female victim’s mouth. He digitally penetrated her painfully and then raped her again, threatening her with the knife. He had vaginal intercourse with her, forced her to perform oral sex on him and then masturbated into her mouth. Starting point: 15 years.
[3] R v Undersen.33 The offender undertook a series of violent offending against his partner. He threatened to kill her, put her in a headlock and then punched her several times. He threw her to the floor and then hit her with a wooden rod. He drove her to a remote location and dragged her from the car by her hair, holding a machete to her throat. He tied a rope around her neck and told her that he was looking for a tree to hang her from. This caused her to urinate herself with fear. He then forced her to give him oral sex, inserted a bottle into her vagina and took her home. This lasted several hours. The Crown and defence agreed that the offending sat within bands 2 and 3 of the tariff judgment. The starting point was held to be 12 years which sits at the bottom of band three. There was other offending in this case. Starting point: (on a totality): 16 years.
31 R v Campbell CA309/01, 26 November 2001.
32 R v Tipene [2009] NZCA 343.
33 R v Undersen [2022] NZHC 141.
[4] R v Wereta.34 The offender and the victim had been in a relationship for nine years prior to the offending. On one occasion, Mr Wereta unlawfully detained the victim in a house truck and threatened to kill her. During this kidnapping period he assaulted her by cutting her with razor blades, burned with a cigarette and a lightbulb, urinated on her and hit her. On another situation with another women, he attempted to penetrate her anus with a hair straightener (turned off) and then used the hair straightener to penetrate her vagina a number of times. It was accepted that the offender took some responsibility, but there were no signs that any remorse was genuine. Combined starting point: 14 years.
[5] Archer v R.35 The victim and the offender were in a de facto relationship for about seven years. On 6 November 2016, the couple had been arguing. At about 4am, the defendant went into the bedroom where the victim was sleeping. He said, “I love you, I love my children, you probably hate me but you’re probably going to hate me more”. He then ripped the victims clothing off. She kept trying to shrug him off, but the offender continued. The behaviour escalated to a point that he grabbed a vibrator and forced it into her vagina whilst holding her down. He then grabbed her mouth and tried to place his penis inside it. He then subsequently raped her. On appeal: starting point: eight years’ six months.
[6] R v B.36 O, male and V, female had been in a turbulent relationship. One evening things took a violent turn and O set upon V in a rage. He left her bruised, with cigarette burns and a finger which needed splinting. He threatened to kill her, tied her to the bed, inserted a candle into her vagina and lit it, made her masturbate with the candle and then had anal sex with her. Starting point: eight years’ imprisonment (for the rape).
[7] R v Hannagan.37 V was O’s de facto partner. One night, O made sexual advances to V however these were refused. He then hit her across the face, punched her in the mouth, threw her to the ground and threatened to kill her. He then forced his
34 R v Wereta [2017] NZHC 935.
35 Archer v R [2018] NZCA 331.
36 R v B CA278/04, 25 November 2004.
37 R v Hannagan CA396/04, 9 June 2005.
penis in her mouth, had vaginal intercourse with her and endeavoured to achieve anal penetration. This occurred over two hours. Starting point: eight years.
[8] Luisi v R.38 The offender was involved in a relationship with the complainant. The two were having consensual sex. During this however, Mr Luisi put his hands around her throat and squeezed sufficiently hard to make her uncomfortable. She told him to stop but he didn’t. They were subsequently having a shower together and a similar situation occurred. On another occasion, they were having sex when she said she wanted to stop however he kept going. The judge considered that Mr Luisi’s strangulation of the victim before engaging in the first act of rape meant it occurred in circumstances involving violence over and above that inherent in the act of rape. The Judge did not consider the fact that consensual sexual intercourse had occurred on both occasions before Mr Luisi committed the rapes diminished Mr Luisi’s culpability to any significant degree. Starting point: (on first rape): no less than seven years.
[9] R v Keremete.39 Mr Keremete threw the victim, his partner, into a car and started “laying into [her]”. He punched her, choked her, covered her mouth and smothered her. He ripped her underwear off and punched her repeatedly in the vagina while she attempted to stop him. She described him as attempting to screw up her vagina like it was a stress ball. The violence continued on and off during the night. Mr Keremete then met the second complainant. On one occasion he repeatedly forced his fist into her vagina whilst wearing large rings. She described him as trying to grab her insides and pulling. Here, an end sentence of 13 years and six months imprisonment was appropriate. This case sat at the upper end of band two. Starting point (sexual offending): seven years, uplifts: 9.25 years.
B Final sentence details
[10] R v Singh.40 O violently assaulted a man and then forced him and a young woman to watch as he violently and repeatedly raped the man’s mother over a period of more than 12 hours. At one point he loaded a gun and put it in her vagina. Adjusted
38 Luisi v R [2020] NZCA 73.
39 R v Keremete [2018] NZHC 730.
40 R v Singh, above n 18.
starting point: not discussed Final sentence (on sexual offending) 15 years, (on totality) 17 years, upheld.
[11] R v Amohanga.41 O, 17, rang V’s doorbell. V, 77, answered. O then went to the back of the house, took a screwdriver from the garage and entered the house through a window. He beat V with the screwdriver, causing extensive bruising and a cracked rip, demanding money and threatening to kill her, then raped her. V was left with partial deafness in one ear. Starting point: not discussed. Final sentence: nine years, including a discount of two years for the guilty plea.
41 R v Amohanga [1989] 2 NZLR 308 (CA).
SCHEDULE 2: STRANGULATION
[12] T v New Zealand Police.42 Mr T pleaded guilty to charges including that of strangulation. He attacked his partner of nine years by kicking her, dragging her to a bedroom, grabbing her by the neck and strangling her until she lost consciousness. When she awoke, she realised she had lost bladder control. A significant aggravating factor in Mr T’s offending was the fact that his actions rendered the victim unconscious and incontinent. Starting point: 3 years.
[13] Parker v New Zealand Police.43 Victim and Mr Parker were in a relationship for three months before the offence occurred. Four young children were at the home but did not witness the offending. Mr Parker was arguing with the victim in the bedroom and pushed the victim five times in the chest. Victim and Mr Parker continued to fight. Mr Parker grabbed the victim by her throat and said “it’s not over until I say it is”. Starting point 2 years.
[14] Houkamau v Police.44 Mr Houkamau and the victim in a relationship for three years. Both had been drinking and they got into a fight. He grabbed the victim and threw her out the front door. He then punched her in the head and choked her with his hands around her neck. Starting point 2 years.
42 T v New Zealand Police [2019] NZHC 3375, [2020] 2 NZLR 270.
43 Parker v New Zealand Police [2020] NZHC 479.
44 Houkamau v Police [2019] NZHC 2743.
SCHEDULE 3: THREATENING TO KILL
[15] Police v Hatcher.45 Defendant and the victim had an argument. The defendant pushed the victim to the ground and grabbed a knife. He pointed the blade to her and made stabbing motions with it, threatening to kill her. Starting point of two years and two months.
[16] Taylor v Police.46 Defendant broke into the complainant’s house, pinned her against the door and threatened to kill her for “narking”. Starting point of 18 months.
[17] Burton v R.47 Defendant had threatened to kill his partner from prison through the phone. He repeatedly told her that he would kill her, her family and burn her house down with her inside. Starting point of two years and six months.
45 Police v Hatcher [2017] NZDC 6625.
46 Taylor v Police [2014] NZHC 1139.
47 Burton v R [2014] NZCA 221.
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