R v Wira
[2017] NZHC 2755
•10 November 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2014-088-2907 [2017] NZHC 2755
THE QUEEN
v
DAVID DENNIS KARANGA WIRA
Charges: Sexual violation by rape (2); Sexual violation by unlawful
sexual connection (2); Attempted sexual violation; Indecent assault (6)
Counsel:
N J Dore for Crown
S Thode for PrisonerSentenced:
10 November 2017
Plea:
Not Guilty
SENTENCING NOTES OF BREWER J
Solicitors:
Marsden Woods Inskip & Smith (Whangarei) for Crown
R v WIRA [2017] NZHC 2755 [10 November 2017]
Thode Utting & Co (Auckland) for Prisoner
Introduction
[1] Mr Wira, you were found guilty by the jury of offending against [Ms A] and against [Ms B]. My task today is to sentence you for that offending.
[2] I also have to give you a third strike warning.
Facts
[3] Your first victim was [Ms A]. She was 54 years old and a stranger to you. She was out walking her dogs when she encountered you in the street. [Ms A] is intellectually disabled and this was immediately obvious to you when you spoke to her. You knew she was vulnerable and you immediately took advantage of that.
[4] You led her by the hand to a more secluded place and, without going into details, you did these things to her:
• Charge 1, indecent assault: you put her hand on your penis.
• Charge 2, indecent assault: you kissed her, putting your tongue in her mouth.
•Charge 3, sexual violation: you forced your hand down her pants and thrust your finger or fingers into her vagina.
• Charge 4, indecent assault: you touched her breasts.
[5] [Ms A] struggled as best she could but you physically restrained her. Her trousers were ripped. During the encounter you masturbated yourself and ejaculated onto the ground before wiping your penis on the front of [Ms A’s] jersey. That left the DNA which identified you.
[6] [Ms B] was 25 years old and living in a self-contained flat in a managed accommodation complex for the intellectually disabled. [Ms B] is intellectually disabled, and that is obvious as soon as you talk to her.
[7] On 16 September 2014, you approached [Ms B] at her flat. She was a stranger to you. As with [Ms A], it was immediately obvious to you that [Ms B] was vulnerable and you immediately took advantage of that. You went inside her flat and almost immediately began to offend against her sexually:
•Charge 5, indecent assault: you kissed [Ms B] and forced your tongue into her mouth.
• Charge 6, rape: you took [Ms B] into her bedroom and raped her.
• Charge 7, rape: at a subsequent time, on the same day, you again raped [Ms B].
• Charge 8, sexual violation: you put your fingers into her vagina.
• Charge 9, indecent assault: you forced [Ms B’s] hand onto your penis.
• Charge 10, attempted sexual violation: on the occasion when you returned to
[Ms B’s] flat, you got on top of her and tried to put your penis into her mouth.
• Charge 11, indecent assault: you kissed [Ms B].
[8] Your DNA was found in [Ms B’s] underwear and this led to your identification.
Starting point
[9] Mr Wira, the law says I should first set a starting point for your sentence to take account of the facts of your offending, and then adjust it up or down taking into account your personal circumstances.
[10] Ms Dore, for the Crown, submits I should adopt a starting point for your offending of between 12 and 14 years’ imprisonment. Ms Thode submits that a starting point of nine years’ imprisonment is appropriate.
[11] The offending against each of your victims is separate offending. It is similar but not part of a connected series of offences. Cumulative sentences of imprisonment
are appropriate.1 So, I will assess a starting point for the charges relating to each of your victims. I will then add the two starting points together and consider whether the overall starting point would be wholly out of proportion to the gravity of your overall offending.2 I will adjust it if it is.
[Ms B]
[12] I will start with the two rape charges. The most significant aggravating feature is [Ms B’s] vulnerability because of her intellectual disability. Although physically an adult, she was very like a child. You very quickly realised her vulnerability and you took advantage of it.
[13] [Ms B’s] victim impact statement makes the harm you did her clear. She has changed. From being happily independent she had to move back to her mother’s. She is anxious and upset around unfamiliar males. She has needed professional help.
[14] The scale of your offending has to be taken into account. You raped her twice, with a significant period of time between the incidents.
[15] Your offending was opportunistic in the sense that you met her by chance and then offended. But, there is premeditation for the second rape. You went back to the flat and knew what you were going to do.
[16] I have looked at the cases I have been referred to, particularly by Ms Thode. It is important I do that because the Court of Appeal, in a case called R v AM (CA27/2009),3 has set out sentencing bands for rape and so I need to decide which band your case comes into. I have decided that your offending puts you at the higher end of band two. You raped a highly vulnerable victim on two occasions. You caused her significant psychological harm. On the other hand, your use of violence was largely limited to that inherent in the offending.
[17] I assess a starting point of 10 years’ imprisonment.
1 Sentencing Act 2002, s 84(1).
2 Sentencing Act, s 85(2).
3 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
[18] I also have to factor in your other offending against [Ms B]. The most serious charge was the sexual violation by putting your fingers in her vagina.
[19] I put that offending at the lower end of band two for unlawful sexual connection and adopt a starting point of four years’ imprisonment. Taken together, that makes a starting point of 14 years’ imprisonment.
[20] I do not forget the remaining charges of attempted sexual violation and indecent assault, but, standing back and looking at your offending overall, I find that I should adopt a starting point for all of your offending against [Ms B] of 12 years.
[Ms A]
[21] I take the sexual violation by you thrusting your hand down her pants and pushing fingers into her vagina after she had attempted to push you away as being the lead charge.
[22] The aggravating features are similar to those present with [Ms B]. This was a single incident of opportunistic offending against a victim vulnerable due to her condition. I have her victim impact statement. She describes having difficulty leaving her house in the aftermath of the assault and suffered from anxiety attacks, particularly if there are any strange men around. It is clear the effects of the assault are still ongoing. She remains fearful. I regard the level of associated violence as mild to moderate. It was more serious than that against [Ms B]. You forcibly held [Ms A]. You forced your hand down her pants, ripping her trousers as she tried to struggle.
[23] I consider that this offending is also at the lower end of band two. Again, the particular vulnerability of the victim is most significant. You targeted her due to her condition. The harm to her is also significant. The level of violence you used was higher than that with [Ms B]. This justifies a higher starting point than the unlawful sexual connection charge in relation to [Ms B].
[24] I consider a starting point of four years and six months’ imprisonment is appropriate. I uplift that by six months to reflect the indecent assault charges, resulting in a starting point of five years’ imprisonment for your offending against [Ms A].
Overall starting point
[25] Adding the two starting points together would result in an overall starting point of 17 years’ imprisonment. However, I must assess whether that would be manifestly excessive having regard to similar cases involving more than one victim.
[26] Mr Wira, I have not been able to find cases which are very similar to yours. I have looked at cases where two adult women were raped and I have looked at cases involving particularly vulnerable complainants. Those cases involve offending against children and are more serious than your case. I will not go through the cases with you but I will list them in the written notes of this sentencing which you will have later.4
[27] I have decided that I must reduce the overall starting point of 17 years’ imprisonment to 13 years’ imprisonment to reflect my assessment of the overall gravity of your offending against these two victims.
Personal factors
[28] I now must look at whether I should adjust the starting point up or down to take into account factors personal to you.
[29] It has been submitted that I should increase the starting point to take account of your criminal record and the delay you caused in the case by attempting to mislead the assessors who were looking at your fitness to stand trial. Your lawyer, Ms Thode, accepts that an uplift is available for this latter factor. However, I am not going to uplift your sentence for these factors:
(a) Your record, although extensive and including convictions for serious violence, does not contain convictions for sexual offending.
4 R v Dawson [2012] NZCA 225; Solicitor-General v Iti [2012] NZCA 27; Kumar v R [2015] NZCA
460; R v Aitchison [2015] NZHC 835; R v Gordon [2009] NZCA 145.
(b)I think your attempt to game the assessment process should be taken into account when looking at whether your personal factors require a reduction in the starting point.
[30] Ms Thode submits I should reduce the starting point to take account of your abusive upbringing and your expressed motivation to change. I think your record, in particular, and your attempt to influence the fitness to stand trial assessment, mean that no credit is due.
Minimum period of imprisonment
[31] The offences for which you are now being sentenced are three-strikes offences. In 2013 you received a first warning because you had committed a three-strikes offence. So, as the law now stands, and it might not be the law for much longer, you will have to serve the sentence I will impose on you without parole. But, the Sentencing Act5 requires me to state, with reasons, any minimum period of imprisonment I would have imposed but for the three-strikes law.
[32] But for the three-strikes law, I would have imposed a minimum period of imprisonment equal to two-thirds of your end sentence.
[33] I would have imposed a minimum period of imprisonment because I do not think the period otherwise applicable is sufficient to hold you accountable for the harm you did to your victims and to protect the community from you. Nor do I think the needs to denounce your conduct and to deter you and others from similar offending would be sufficiently served by the standard period.
[34] I have taken these factors into account:
(a) The harm you did to your extremely vulnerable victims is profound and ongoing.
5 Sentencing Act 2002, s 86C(6).
(b)The pre-sentence report places your risk of harm to others and risk of re-offending as very high.
(c) You have a number of convictions for acts of serious violence, with the latest being in 2013.
(d)Your current offending was against strangers who you recognised as vulnerable and so did what you wanted with them.
(e) You show no remorse and no empathy for your victims.
(f) The need to deter you and to protect the community is made apparent by your attempts to evade responsibility for your offending. There is your attempt to influence the mental health assessors. And, you gave evidence at your trial and told clumsy lies in an attempt to explain how your DNA got on your victims’ clothing and, in the process, portrayed them as liars.
Sentence
[35] Mr Wira, your sentences for the offending against [Ms B] are:
(a) On each of the charges of rape, nine years’ imprisonment. The minimum period of imprisonment on these charges would have been six years.
(b) On the charge of sexual violation (charge 8), four years’ imprisonment.
(c) On the charge of attempted sexual violation (charge 10), three years’
imprisonment.
(d) On each of the charges of indecent assault, one year’s imprisonment.
[36] These sentences will be served concurrently with each other but cumulative on the sentences for the offending against [Ms A], which I will now come to.
[37] For the offending against [Ms A], your sentences are:
(a) On the charge of sexual violation (charge 3), four years’ imprisonment.
The minimum period of imprisonment on this charge would have been two years seven months’ imprisonment.
(b) On each of the charges of indecent assault, one year’s imprisonment.
[38] These sentences are to be served concurrently with each other but cumulative with the sentences in respect of [Ms B].
[39] Mr Wira, this means that your effective sentence is 13 years’ imprisonment.
Strike warning
[40] I must now give you the next three-strikes warning:
Given your convictions for sexual violation and indecent assault, you are now subject to the three strikes law. This is now your final warning which will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists these
‘serious violent offences’.
1.If you are convicted of any serious violent offence other than murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless it would be manifestly unjust.
2.If you are convicted of manslaughter committed after this warning, then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years’ imprisonment unless the Judge considers it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum of at least 10 years’ imprisonment.
3. If you are convicted of murder after this warning then:
(a) you must be sentenced to imprisonment for life. The Judge must order you to serve this sentence without parole unless it would be manifestly unjust to do so;
(b) if the Judge finds that it is manifestly unjust to do so then the Judge must impose a minimum period of imprisonment of at least 20 years unless that would be manifestly unjust, in which case the Judge must sentence you to a different minimum period of imprisonment.
4.If you are sentenced to preventive detention you must serve the maximum term of imprisonment of the most serious offence you are convicted of unless a Judge considers that would be manifestly unjust.
[41] Finally, you have fines, reparation, court costs and enforcement fees outstanding totalling $1,253.22. In view of your sentence today, I direct those be remitted.
[42] You may stand down.
Brewer J
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