R v Winikerei HC Rotorua CRI 2008-029-1187

[2010] NZHC 1578

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2008-029-001187

THE QUEEN

v

SAMMY DOUGLAS WINIKEREI

Appearances: A J Gordon for the Crown

M A Simpkins for the Prisoner

Judgment:      25 June 2010

SENTENCING NOTES OF PRIESTLEY J

Counsel/Solicitors:

A J Gordon, Crown Solicitors, P O Box 740, Rotorua 3040. Fax: [phone]

M A Simpkins, Lance Lawson, P O Box 2279, Rotorua3040. Fax: [phone]

R V WINIKEREI HC ROT CRI-2008-029-001187  25 June 2010

[1]      Sammy Douglas Winikerei, as you know, you were convicted in the High Court at Rotorua on 7 May this year on two serious charges.  The first was sexual violation by rape which carries a maximum sentence of 20 years imprisonment.  The second was a charge of kidnapping or in this case unlawful detention which carries a maximum sentence of 14 years imprisonment.  This offending took place in October

2008.

[2]      The victim was a longstanding friend of yours.  She trusted you.  You had never before had any romantic association or sexual relationship with her.  She was, as were you, associated with the Mongrel Mob gang.   She frequently acted as a driver for you as you moved around the country.  Prior to your offending she had driven you from Hamilton to Auckland.   There in the company of others you had stayed a couple of nights.  She then drove you, not to Taumaranui which is where she thought you were going, but instead, on your directions, to the home of a female friend of yours with whom you had had a historic relationship, in the countryside on the outskirts of Putaruru.  She did not know where she was.  There you effectively detained her for two days.  You took away her car keys.  You did not let her use the telephone.  You deterred her from sending texts (although she managed to send some texts).  When she tried to leave shortly after her arrival you punched her, generally manhandled her, and dragged her by her hair down a flight of three or four steps into a laundry/garage area.

[3]      Later on that evening, in one of the main rooms of the house, you raped her.

[4]      The jury convicted you of unlawful detention and rape.  You, for your part at trial, did not dispute that sexual intercourse had taken place.  The defence you ran was that your victim had consented.

[5]      I note in passing you faced a second charge of rape which occurred, so it was alleged, late afternoon or early evening of the second day, - a day when the owner of the house and various relatives and friends returned to it.  On that charge the jury disagreed,  your defence being intercourse had never taken place on that second occasion.   I of course totally ignore that charge, and the hung jury, for sentencing purposes.

[6]      Finally your victim was able to escape from the house when she appears to have administered prescription painkillers to you, mixed into coffee.  This sent you to sleep for a short period enabling your victim to reclaim her car keys and drive, in a state of fear, to the police station at Putaruru.

[7]      Your threats to your victim included a moderate level of threatened violence which also included verbal threats to her life.  Your victim sustained bruising to her cheek bone, swelling around her mouth, scratches to her neck area and upper chest, and tender bruised areas on her arms, legs, lower back, and scalp.  Some of these injuries are clearly consistent with your abusive treatment of her on the first night.

[8]      I  note  Mr  Winikerei  that  you  deny  raping  your  victim.    You  say  the intercourse was consensual.   You thus show no contrition or empathy with your victim.   However, the jury chose to believe your victim‘s evidence.   Her story carried them to a finding of guilt beyond reasonable doubt.  As trial Judge I comment that the evidence of your victim and her demeanour throughout was consistent with her story.  Her anger towards you and her feeling of betrayal shone through.  The quality of her evidence was not that of a person fabricating a story.

Victim Impact

[9]      I have read the victim impact statement.   Your victim, whose presence I acknowledge in court today, has constructed a powerful victim impact statement which I have read.  She describes what you did to her as being degrading and soul destroying.  She describes her feeling of powerlessness, particularly being alone in the home.  Alarmingly she refers to various threats which she has received.  There is no evidence, however, to connect those threats to you or to your gang.  She describes sleepless nights, nightmares, and despite counselling assistance, serious depression.

The sentence

[10]     I need now to say something about your personal circumstances.  You are 49 years of age, of Tainui descent.  You will be 50 at the end of this year.  For three

years before you were remanded in custody you lived in Kaitaia with your partner of five years.   You have, you say, eight children from previous relationships about whom you care, understandably, but whom you rarely see.  You have contact with your siblings.  Both your parents are dead.

[11]     You describe yourself as living an adult’s life before your time and you alluded, when being interviewed by the probation officer, to substance abuse, violence, and callousness as being part of your upbringing.  Since 17 you have been a member of the Mongrel Mob gang.   Since you moved to Kaitaia to be, as you described it, your own man you have had less to do with that gang but remain an active patched member.   You have a back injury.  Your sickness benefit has been your main source of income.   Otherwise you are fit and healthy.   I note, as your counsel has told me, and as is in the presentence report, that whilst you have been in prison you have completed approximately half of a small business course.

[12]     You, as I have stated, deny the offending.  You told the probation officer you have been locked up for something you did not do.   You claim that the sex was consensual.    You,  for  these  reasons,  are  unwilling  to  make  amends,  show  no remorse, and inevitably lack insight into the causes of your offending.  You do have offending of a frequent nature, about which I will say something in a minute.  The probation officer assesses your motivation to change as low and the risk of re- offending as high.   Although the presentence report recommends a sex offenders’ treatment programme you would not be suitable for that programme at the moment, given that you deny your offending.

[13]     You have previously served 20 custodial sentences.  You have a history of breach of release and parole conditions.   I think accurately, the probation officer describes you as being immersed in gang life.  The report recommends imprisonment which of course, as you know is inevitable.   I do note your counsel’s submission, however, that you have instructed him that since your imprisonment you have been making some efforts to try to help yourself and perhaps turn your life around.

[14]     I turn now to your previous convictions.  Since 1977 you have amassed 110 convictions, excluding the current two.  The most recent was in July 2009 for which

you were imprisoned.  In May 2008 approximately five months before your present offending you were convicted for breaching release conditions.   You have, significantly, five conditions for male assaults female, the most recent being in April

2006.  You have four convictions for breaches of protection orders.  You have three other convictions relating to assault or wounding.

[15]     I need to say something very briefly about Sentencing Act purposes and principles, although counsel agree on these.  The major s 7 purposes are those found in ss 1(a), (b), (c), (e), (f), and (g).  Denunciation and providing for the interests of your victim are of some importance here.   As far as s 8 principles are concerned, those in ss 8(a), (b), (e), and (f) seem to me to have relevance.

[16]     I turn now to aggravating features.  Those are matters, Mr Winikerei, which perhaps make your offending worse or make things more difficult from your point of view.   I think that aggravating factors relating to the offending here involve the actual use of violence.  I refer there to your assaults on your victim and to the threats. I note the harm done to your victim which is detailed in her victim impact statement. There is, as I have told counsel this morning, an abuse by you of a position of trust. Your victim was your friend who trusted you enough to drive you around the countryside.  From that point of view your behaviour towards her was unexpected and that trust made her, in my view, more vulnerable than she would otherwise have been.

[17]     I discussed with counsel the issue of premeditation.   I decline to hold that there was any premeditation on your part before you got to the Putaruru address. Undoubtedly you did not tell your victim where she was driving you but it would not be safe for me to assume that you had hatched a plan for your activity on that first night before you actually arrived at the house in Putaruru.

[18]     Other aggravating features which I consider under s 9(4)(a) are the length of this detention, just short of two days, and also the degree of violence which occurred.

[19]     So far as the offending is concerned there are no mitigating features at all. Nor do I consider that there are any mitigating features which are relevant to you.

Aggravating features, however, which are relevant to you must be your previous criminal history to which I shall turn shortly.

Counsel’s submissions

[20]     You were well served, Mr Winikerei, by Mr Simpkins’s efforts for you at trial.   In a focused but non-aggressive way he raised a number of points on your behalf.   His cross-examination fairly canvassed all matters which your defence required him to test.

[21]     Ms Gordon, in her submissions to me today, suggests that I should use a start point of between 10 and 11 years imprisonment and impose a minimum period of imprisonment of 50%.

[22]     Your own counsel suggests to me that I should use a start point of nine years imprisonment, but he is opposed to the imposition of a minimum term.

The sentence

[23]     Both counsel are agreed that the rape count should attract the lead sentence. Counsel are further agreed that, in terms of R v AM[1]  your offending fits into band two which attracts sentences ranging from seven to 13 years imprisonment.

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

[24]     The  Court  of  Appeal  (at  [98])  describes  band  two  as  appropriate  for offending which contains levels of violence and premeditation which are, in relative terms, moderate.  It is said to be the appropriate band for cases which involve two or three of the factors, increasing culpability to a moderate degree.

[25]     The Court of Appeal, as I discussed with Mr Simpkins, at ([98]) gave R v Anderson[2] as an example of a case which sat at the bottom end of band two, where the period of abduction  was much shorter than  here and where there was little premeditation.

[2] R v Anderson [2009] NZCA 210.

[26]     The aggravating features relating to your offending are in the main those features which were part of your unlawful detention.  You detained your victim in the Putaruru house for almost two days.   Through a combination of threats and physical violence you effectively coerced her into a state where she was fearful of leaving, even though for a few hours there were other people in the house.   The violence (of a nonsexual nature) which you inflicted on her rendered her bruised and sore.   For both the detention and the rape there was premeditation.   The unlawful detention itself amounted to days rather than a few hours.

[27]     Looking  at  your  culpability  across  both  offences  I  consider  that  an appropriate start point would be one of 10½ years imprisonment, just above the midpoint of R v AM band two.

[28]     Your   criminal   record   includes   several   convictions   for   violence,   and significantly five for male assaulting female, and also convictions for breaches of protection orders.  You have been in prison, as you know, many times.  A year term was imposed for assaulting a female in 2002.  A two year term was imposed in 2006, one offence again being assaulting a female.   In short you have not learned your lesson and seem to be of the view that you are entitled to batter women around.  This record and its underlying propensity are aggravating factors.  I intend, in terms of the

R v Taueki[3] methodology, to uplift the 10½ years by nine months to 11 years and

[3] R v Taueki [2005] 3 NZLR 372.

three months to reflect those aggravating factors personal to you. [Stand up please]

[29]     There are no mitigating features here.   Thus, on the lead charge of sexual violation by rape I sentence you to 11 years three months imprisonment.

[30]     On   the   charge  of   unlawful   detention   I  sentence   you   to   five   years imprisonment.  Both those terms to be served concurrently.

[31]     The Crown has asked me to impose a minimum period of imprisonment under s 86.  In terms of the Parole Act you will have no parole eligibility in respect of the sentence I have imposed until you have served one third of it, that is three years  and  nine  months  imprisonment.    The  Crown  suggests  I should  impose  a minimum term of 50% of your sentence.  Under s 86(2) I must be satisfied that the one third parole period would be insufficient to meet the Sentencing Act purposes of holding you accountable, denunciation, deterrence, and, importantly in your case, protecting the community.  Luckily for you you have no history of sexual offending. You do, however, have a history of violence.   Given your record, particularly previous  offending  against  women,   I  consider  denunciation  and  community protection are potent s 86(2) factors and that parole eligibility after three years and nine months would be insufficient.   Given that you have no history of sexual offending, however, I consider that 50% would be pitching the minimum term on the high side.  I instead order that you are to serve a minimum period of imprisonment of four years and nine months imprisonment.

[32]     I also recommend to the Parole Board that they assess very carefully the risks of your continuing to offend and your gang connections when timing your eventual release.

[33]     Thank you Mr Winikerei.  Take him down.

.......................................… Priestley J