R v Wirangi

[2007] NZCA 25

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 454/06 [2007] NZCA 25

THE QUEEN

v

JACOB JAMES WIRANGI

Hearing:         21 February 2007

Court:            William Young P, Randerson and Harrison JJ Counsel:          A M Simperingham for Appellant

K Raftery for Respondent

Judgment:      27 February 2007         at 3 pm

JUDGMENT OF THE COURT

A        The appeal against sentence is allowed.

BThe  minimum  period  of  imprisonment  of  five  years  four  months  is quashed.

R V WIRANGI CA CA 454/06  27 February 2007

REASONS OF THE COURT

(Given by Randerson J)

[1]      The appellant was convicted after trial in the District Court before Judge Perkins and a jury on one count of rape.  He was sentenced on 7 June 2006 to eight years imprisonment with a minimum term of five years and four months (two-thirds of the eight year sentence).

[2]      His appeal against conviction was dismissed by this court on 25 October

2006 (CA228/06) but he has separately appealed against sentence.  This approach is undesirable and should not generally be followed.  There is no challenge to the eight year term but the minimum period of imprisonment is challenged on the basis it is manifestly excessive.

Facts

[3]      At the time of the offending, the complainant was a sixteen year old female student residing at her grandmother’s home.   The appellant was a friend of the complainant’s family and was asked to look after the grandmother’s home while she was  in  hospital.     On  the  evening  of  14  December  2004,  the  appellant,  the complainant and her younger cousin were at the grandmother’s property watching video movies.   The appellant made sexual advances to the complainant after her cousin had gone to bed.  He exposed his penis but she demanded he leave the house. The appellant then changed into her nightwear and went to bed.     She was later awoken by the appellant removing her bedclothes.  He removed her lower clothing and then raped her.  When this was completed he proceeded to masturbate himself in front of the complainant before dressing and leaving the property.

[4]      There  had  been  at  least  two  prior  occasions  when  the  appellant  had propositioned the complainant about sex, the last of which was only two days before the subject offending.  On each occasion the complainant had made it clear she did not want to have sexual contact with him.

[5]      At   trial,   the   appellant   admitted   having   sexual   intercourse   with   the complainant, but maintained she consented.

The sentencing remarks

[6]      The Judge noted the appellant was 38 years of age at the time of sentencing. Although he had some previous convictions, there were none for sexual or violent offending.    The  Judge  recorded  that  the  appellant  was  well  regarded  by  his employers but that the appellant continued to maintain his innocence and was unwilling to address any problems which might be associated with the offending.

[7]      Referring to the victim impact statement, the Judge described the effects on the complainant as “quite profound” particularly during the period of the appellant’s lengthy remand on bail during which she continued to be fearful of the appellant who remained living in the area.   The complainant stated she had moved to another district to live for a period because she was annoyed and frustrated about what had happened  to her.  She was no longer the happy person she used to be and was not willing to forgive the appellant who she trusted “as an uncle”.

[8]      The Judge considered the aggravating features to be the young age of the victim and the fact she was violated in her own bedroom.  He did not accept there was any breach of trust although, for ourselves, we think that was a rather narrow view of the matter.   The appellant was someone to whom the complainant could reasonably have looked for protection.

[9]      The Judge noted there were no mitigating circumstances but accepted there was no violence other than the violence inherent in this type of offending.   He therefore imposed the term of eight years imprisonment, relying on R v A [1994] 2

NZLR 129 (CA).

[10]     In relation to the minimum period of imprisonment, the Judge stated:

I am required to consider whether the minimum period of imprisonment, which would otherwise be applicable, would be sufficient in this case to hold you accountable for the harm that you have done to the young victim, to

denounce your conduct, to introduce a deterrence to you and others from committing the same or similar offending and to protect the community from you.  I have decided that the minimum period of imprisonment, which would otherwise  be  applicable,  would  be  insufficient.    Accordingly,  I  make  a further order that you are to serve a minimum period if imprisonment of five (5) years and four (4) months, which is exactly two thirds of the sentence of eight years I have imposed.

Submissions

[11]     Mr Simperingham submitted for the appellant there were no factors justifying the imposition  of  a  minimum  term  of  imprisonment.  There  was  nothing  in  the circumstances of the offence or of the offender which took the case out of the ordinary for offending of this kind.  He noted the absence of collateral violence; the rape was a one-off incident of short duration; the absence of prior convictions for violence or sexual offending; and the absence of physical harm to the complainant. He accepted the Judge had correctly identified the aggravating features but submitted these were appropriately recognised in the term of imprisonment imposed.   There was nothing, he submitted, to support the conclusion of the Judge that the normal period of imprisonment under s 84(1) Parole Act 2002 was insufficient  for  the statutory purposes identified in s 86(2).

[12]     For the Crown, Mr Raftery submitted that the focus of s 86 had shifted following the amendment of the section with effect from 7 July 2004.  He referred us to the observations of this Court in R v Taueki [2005] 3 NZLR 372 at [55]:

The primary focus of the first question is the statutory test in s 86(2), as set out at para [52] above. As this Court recently noted in R v Walsh (CA

281/04, 19 May 2005) at para [25], the four factors referred to in s 86(2) are matters which correspond with four of the purposes of sentencing set out in s
7(1) (s 7(1)(a), (e), (f) and (g)). The question before the Court is whether serving one-third of the nominal sentence is insufficient for all or any of those  four  purposes.  The  Court  must  focus  on  those  purposes  when

determining whether to impose a minimum period of imprisonment. The principles  in  s  8  and  the  aggravating  and  mitigating  factors  in  s  9  are

applicable only to the extent that they are relevant to those four purposes. For example, as the Court noted in Walsh at paras [26] – [28], a guilty plea
may be relevant to the deterrence purpose (if the plea demonstrates insight into the offending) but may have little relevance to the community protection purpose.

[13]     Mr Raftery submitted that, post-amendment, the focus shifted away from a comparison with other offending and the Court now concentrates on whether serving a minimum of one-third of the nominal sentence is insufficient for all or any of the four purposes identified in s 86(2).

[14]     Mr  Raftery  submitted   that   the  imposition   of   a  minimum   period   of imprisonment was justified in the present case and that the length of the period was appropriate.  As to holding the offender accountable for the harm done, Mr Raftery submitted that there had been a serious effect on the wellbeing of the complainant and noted the absence of remorse.   As to deterrence and denunciation, it was submitted the offending could fairly be characterised as persistent and calculating and that the complainant was in a vulnerable position.   He referred us to the observations of this Court in Walsh at [26] that a plea of guilty is relevant when determining the minimum period necessary to satisfy the purposes of denunciation and deterrence. Here, it was submitted the appellant showed no insight into the offending and the effects on the victim.   As to community protection, although acknowledging the appellant had no previous convictions of a sexual nature, he did have other criminal convictions and expressed no willingness to address the causes of his offending.  These factors were, Mr Raftery submitted, relevant to the need to protect the community.  The same factors, it was submitted, also justified the length of the minimum period imposed.

Discussion

[15]     Inquiries were made of counsel appearing at the time of sentencing.  We were informed that the Crown did not include any reference to a minimum period of imprisonment in its written submissions for sentencing purposes and neither counsel could recall any oral discussion on that topic.  However, we accept it is possible the issue  was  raised  by  the  Judge  orally  in  argument  and  that  it  may  have  been addressed, even if briefly.  In any event, a sentencing Court is not precluded from raising the issue of a minimum period of imprisonment of its own volition.

[16]     In  the  present  case  however,  the  Judge  did  not  set  out  any  reasons  for imposing  the  minimum  period  of  imprisonment  other  than  a  recitation  of  the

statutory provisions and his conclusion that the usual minimum period was insufficient for the statutory purposes.  Nor did the Judge explain why the maximum of two-thirds of the full term of the sentence was necessary or justified.

[17]     It  must  be  assumed  that  the  Judge  relied  on  the  same  factors  as  were discussed in setting the term of the sentence itself.  We are not persuaded that any of those  matters  justified  the  imposition  of  a  minimum  period  of  imprisonment. Without in any way diminishing the seriousness of the crime of rape, there were no features of the offending which took this case outside the common run of cases of this kind.  While we accept the focus of the inquiry under s 86(2) has now shifted in the way identified in Taueki and Walsh and that a minimum period of imprisonment may be imposed even where the case does not disclose any unusual or abnormal features for offending of the kind in question, considerations of that kind may still be relevant to the overall assessment required under s 86(2).

[18]     Addressing the statutory purposes under s 86(2), we consider the eight year term and the usual minimum period of imprisonment under s 84(1) Parole Act 2002 was sufficient for those purposes.  It is not to be assumed that the appellant will be released immediately upon the expiry of the minimum period of one-third of the full term of the sentence.  Indeed, our understanding is that this is unlikely for offending of this type.   The statutory purposes of holding the offender accountable for the harm, denouncing his conduct and deterring him or others from committing similar offences will be met sufficiently by the usual minimum period.  There is nothing in the appellant’s previous record to suggest he presents a high risk of reoffending, notwithstanding his continued protestations of innocence and his lack of remorse. And, for the same reason, we do not consider any longer minimum term than that mandated by the Parole Act is required in order to protect the community.

Result

[19]     In the circumstances, we consider the sentence is manifestly excessive.  The appeal is allowed and the minimum period of imprisonment of five years and four months is quashed.

Solicitors:

Crown Law Office, Wellington.