Roberts v The King
[2023] NZHC 2360
•28 August 2023
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-30
[2023] NZHC 2360
BETWEEN ISAAC TURETANAE ROBERTS
Appellant
AND
REX
Respondent
Hearing: 21 August 2023 Appearances:
J A Westgate for Appellant
C E R Power for Respondent
Judgment:
28 August 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 28 August 2023 at 2.45 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
ROBERTS v R [2023] NZHC 2360 [28 August 2023]
Introduction
[1] Isaac Roberts pleaded guilty to charges of sexual violation by unlawful sexual connection1 and one charge of strangulation.2 Mr Roberts also pleaded guilty to two charges of breaching release conditions.3
[2] Judge Turner sentenced Mr Roberts to five years and 11 months’ imprisonment.4 He appeals that sentence on the ground it was manifestly excessive.
Facts
[3] On 25 May 2022, the victim moved into a semi-detached property adjacent to Mr Roberts. Around 8:00 pm on the same day, Mr Roberts went to the victim’s house and introduced himself to her. Mr Roberts groped the victim’s buttock in her bedroom a short time later. He then followed her outside and kissed the left side of her throat and face. When the victim pulled away, Mr Roberts gripped her throat with one hand and kissed her on the mouth while strangling her. He then released her before pulling her back in and giving her a hickey (being a bruise caused by suction) on her throat.
[4] Mr Roberts told the victim she “You can call me Zax Dog and you are mine now”. He then stood up in front of the seated victim, pulled his penis out and grabbed the victim by her hair, forcing his penis into her mouth. The victim broke free and locked herself inside the house, barricading the entrance with a large fridge.
[5] Mr Roberts forced his way inside. Upon finding the victim hiding in her bedroom with her son, he left without further incident.
Impact on the victim
[6] The victim suffered bruising. She also suffered the stress of needing to find new accommodation despite the fact she and her son had only moved into the new residence the day the offending took place, hoping to start a new life outside of her
1 Crimes Act 1961, s 128(1)(b), 128B; maximum penalty 20 years’ imprisonment.
2 Section 189A(b); maximum penalty seven years’ imprisonment.
3 Sentencing Act 2002, s 96(1); maximum penalty one years’ imprisonment.
4 R v Roberts [2023] NZDC 5901.
mother’s home. Both the victim and her son report psychological trauma from the offending. The victim’s now 11-year-old son appears to have been significantly impacted, with anger issues worsening following the incident and constant fear and anxiety for his mother’s safety.
District Court Decision
[7] Judge Turner noted Mr Roberts’ failure to attend a domestic violence programme and an alcohol and drug programme, as directed by his probation officer as a condition of his release from prison on 3 February 2021. He also noted Mr Roberts’ history of offending stretching back to 2002, emphasising his record of violence toward women and a family violence strangulation charge as recent as 2020.
[8] Citing R v AM, the Judge found the sexual violation offending fell within band one of the Court of Appeal guidelines.5 The Judge considered the following aggravating factors were present in the offending at a low to moderate degree; violation of the sanctity of the victim’s home, victim vulnerability, victim harm and a low level of premeditation. He adopted a starting point of six years’ imprisonment, being at the lowest end of band one.
[9] A starting point of ten months’ imprisonment for Mr Robert’s strangulation offence was adopted with totality in mind. A two-month uplift was imposed to take account of the fact he was in breach of his release conditions for the 2020 offending. The Judge arrived at a starting point of seven years’ imprisonment.
[10] An uplift of 12 per cent was applied for Mr Roberts’ history of offending against women including a previous charge of strangulation and of breaching court sentences, including release conditions. A 22 per cent credit was allowed for Mr Roberts’ guilty pleas which the Judge said were not entered at the earliest opportunity.
5 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
[11] Mr Roberts disputed the factual account laid out by the Judge, claiming he did not force himself on the victim and that he did not intend to strangle her. The Judge dismissed these claims as “nonsense” and considered they showed a lack of remorse.6
[12] Citing the approach taken in Berkland v R, the Judge considered Mr Roberts’ background — which the Judge found to be entirely self-reported — justified a discount of five per cent. The adjustments resulted in a 15 per cent net credit, leading to a sentence of five years and 11 months’ imprisonment, rounded down.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Submissions
Appellant’s submissions
[14] Mr Westgate, counsel for Mr Roberts, submitted the starting point adopted was excessive and there was an error in the Judge’s approach to uplifts and sentencing discounts. In challenging the starting point Mr Westgate put particular weight on the cases Mohammed v R10 and D(CA95/2014) v R.11 In Mohammed, the defendant strangled the victim and rubbed his penis across and around her face, attempting to put
6 R v Roberts, above n 4, at [40].
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
10 Mohammed v R [2023] NZCA 295.
11 D(CA95/2014) v R [2015] NZCA 171.
it in her mouth. A global starting point of four years’ imprisonment was adopted in that case, endorsed by the Court of Appeal.12
[15] Mr Westgate notes the following similarities between Mohammed and Mr Roberts’ charges:
(a)an adult complainant;
(b)a lack of domestic relationship between the parties, with no resulting breach of trust;
(c)a one-off offence;
(d)offending occurring at the complainant’s home; and
(e)strangulation preceding a sexual violation by way of connection between the appellant’s penis and the complainant’s mouth.
[16] The only key distinction, in Mr Westgate’s submission, is that in this case the Appellant penetrated the victim’s mouth with his penis as opposed to rubbing the area around it as in Mohammed. Counsel submits this does not justify a starting point that is two years and ten months higher than the one in Mohammed, while accepting that some increase is justified.
[17] Mr Westgate submits guideline judgments like R v AM must be applied with flexibility to achieve justice in each individual case.13 Although the offending, penile penetration of the mouth, did allow application of R v AM bands, a lower starting point was open to the Court.
[18] Mr Westgate submits the starting point of two years’ imprisonment for the strangulation charge was too high, challenging the Judge’s interpretation of Shramka v R and saying that even if two years is adopted, totality factors justify a greater
12 Mohammed, above n 10, at [53].
13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10].
discount.14 Counsel submits five years and six months’ imprisonment would have been an appropriate global starting point.
[19] Mr Westgate next takes issue with the Judge’s recognition of the appellant’s history of offending by imposing a 12 per cent uplift, whilst only allowing a five per cent credit for Mr Roberts’ background. Mr Westgate notes Mr Roberts has no previous offences involving sexual violation, and his previous convictions for violence against women do not justify the uplift on sentence.
[20] Mr Westgate also submits greater credit should have been given for the appellant’s background, including his exposure to violence in the family, his experience of sexual abuse and his history of alcohol abuse. Referring to statements from Mr Roberts’ mother and sister, Mr Westgate submits the accounts of Mr Roberts’ past cannot be labelled as entirely self-reported as the Judge said. Mr Westgate also notes such abuse is almost always entirely self-reported because it happens in private. Mr Westgate submits there is no mention of denial in the cultural report by the claimed perpetrators as referred to by the Judge and, even if there was, such denials would not automatically disprove Mr Roberts’ claims.
[21] Mr Westgate takes no issue with the two-month uplift on the grounds of Mr Roberts’ release conditions breach. Counsel submits an end sentence in the vicinity of three years and ten months’ imprisonment would be appropriate.
Respondent’s submissions
[22] Mr Power, for the Crown, submits the overall sentence was not manifestly excessive and the appeal ought to be dismissed.
[23] In distinguishing the case of Mohammed relied upon by Mr Westgate, Mr Power notes that in Mohammed, the victim had been in a relationship with the defendant’s brother and she went to a club on a night out with the defendant. Here, the victim was a stranger to Mr Roberts, having moved in that day, and that the victim’s ten-year-old son was nearby at the time of the offending, including when she
14 Shramka v R [2022] NZCA 299, [2022] NZLR 348.
barricaded herself in the home. He was set to be a witness on the charges. Furthermore, the fact penetration did occur in this case means the rape bands apply, not the unlawful sexual connection bands which applied in Mohammed and D v R.
[24] Mr Power submits the Judge did no more than suggest the starting point for strangulation “would ordinarily be in the vicinity of two years”. He did not say the starting point was two years. In any event, the 10 months actually imposed on a totality basis could have, in Mr Power’s view, have been as high as 12. The overall starting point, which included the breach of release conditions charge, was within range.
[25] In terms of personal aggravating factors, Mr Power notes Mr Roberts’ 16 prior convictions for violence-related offending. Mr Roberts received a sentence of imprisonment of one year and 10 months for a previous strangulation offence that also involved breaching a protection order and an assault on a child. The fact Mr Roberts did not have a history of sexual offending does not mean an uplift for the strangulation offending was not justified. Mr Power submits an uplift of 12 per cent was justified in light of this history.
[26] Mr Power accepts the s 27 report records Mr Roberts was exposed to repeated physical violence while young and to his parents’ alcohol abuse. He also accepts the s 27 report records sexual abuse by older children, although it also referred to the perpetrators of the alleged sexual abuse denying it and the Judge was not wrong to refer to that. However, he also said the fact Mr Roberts was living a “largely normal” life, with no gang background, a pro-social mother, no evidence of drug dependence by his parents and no evidence of truancy or of a high level of exposure to drugs in his youth, should be taken into account.
[27] Mr Power refers to Berkland v R and the observation that a causative contribution is required between an offender’s background and the offending for any discount to be justified.15 Mr Power notes that a 10 per cent discount was applied in Berkland for the defendant’s deprived background, including multiple criminogenic factors, and the five per cent afforded here was within range.
15 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
[28] Mr Power also suggests that because the offending is in such close proximity to the appellant’s previous strangulation offence, this may be a case where causative contribution of background is displaced, due to the serious nature of the offending. Other sentencing goals such as community protection, may become more important.16
[29] There is also, Mr Power submits, no evidence to suggest the appellant’s background of sexual abuse was the operative cause of his offending. The fact it was the appellant’s birthday, the statement he made and the fact he had had an earlier disagreement with his partner suggest, in Mr Power’s view, that this was simply entitled and opportunistic offending.
Analysis
[30] Mr Westgate’s primary challenge to the sentence imposed rests on the starting point being too high when compared to the case of R v Mohammed. However, that case may be distinguished on a number of grounds. In Mohammed, the victim and appellant had known each other for some years. After a night of drinking, the appellant arrived at the victim’s address. The victim asked him to leave and he refused, pinning her down, placing two hands on her throat to impede breath and proceeding to rub his penis across her face in an attempt to put it in her mouth. The attempt was unsuccessful and penetration was not achieved.17 Both the sexual offending and strangulation in Mohammed is less serious and less violent than the offending Mr Roberts has been charged with.
[31] Unlike the offending in Mohammed this offending involved oral penetration. Furthermore, Mr Roberts’ actions involved a stronger level of violence and persistence, noting the forcing of the penis into the mouth by grabbing the victim’s hair bun and the forced entry past the barricaded door a short time later. To add to this, the victim’s ten-year-old son (at that time) witnessed much of the interaction and feared for his mother’s safety.
16 At [111].
17 Mohammed, above n 10, at [3]–[8].
[32] As recognised in Mohammed18, the sentencing bands in R v AM apply to “penile penetration of the mouth”.19 The starting point of band one for rape is six to eight years.20 It is reasonable to view actual oral penetration as more serious offending than the unlawful sexual connection in Mohammed for several reasons, including the greater invasion of personal boundaries and personal dignity it involves, as well as the likely greater degree of force used by the offender to achieve penetration.
[33] The fact of penetration, as well as the overall more serious nature of the offending here, means it was reasonable for the Judge to take R v AM’s band one of between six to eight years as a starting point. The vulnerability, level of violence, presence of a child witness and invasion of home factors satisfy me that a six year starting point was appropriate. There was no reason to adopt a starting point which was less than band one.
[34] In terms of the 10 month uplift for strangulation, again I consider this case was more serious than in Mohammed. Whereas in Mohammed the strangulation involved “pressure” and the placement of hands on the victim’s neck, Mr Roberts squeezed her neck while sucking air out of her mouth causing her to struggle for breath. He then also pulled the victim in and gave her a hickey. In Shramka the Court noted that, had the strangling in that case been more transitory and lower level (in Shramka the defendant strangled the victim for around 30 seconds, rendering her unconscious), a sentence, “perhaps as low as two years” may have been justified.21 This clearly guided the Judge to observe that a two year point was within range. He was right to do so and this meant the ten-month uplift on sentence, which took into account principles of totality, was reasonably available to him. I therefore uphold the Judge’s starting point of seven years’ imprisonment.
[35] Mr Westgate criticises the 12 per cent uplift for previous offending on the basis Mr Roberts has no previous convictions for sexual violation, which was the lead offence here. However, the history of violence to women, including the prior strangulation offending, clearly engages the purpose of uplifts for prior offending.
18 At [49].
19 R v AM, above n 5, at [5].
20 At [90].
21 Shramka v R, above n 14 at [50]–[54].
This was a further instance of violent and entitled behaviour against women which increased his culpability on this occasion and showed the need for a deterrent response.
[36] In my view, the uplift was clearly within range given Mr Robert’s history of violent offending, breaching release conditions and, most significantly of all, his recent previous conviction for strangulation.
[37] However, in terms of adjustments to the starting point, Mr Westgate’s primary focus is on whether the Judge should have given more credit for the background factors which led to this pattern of violent offending. Both the drug and alcohol assessment and the s 27 report outline a history of alcohol abuse starting from when Mr Roberts first began drinking at around age 12 or 13. Mr Roberts also reports both his parents having issues with alcohol, as did two of his siblings. However, he also reports an eight year period of alcohol abstinence given the problems his drinking was causing both in relationships and employment. In the end, the alcohol and drug assessment report does not suggest alcohol dependence, but does suggest harm occurs when he drinks to excess.
[38] Mr Roberts’ s 27 report acknowledges the role of alcohol in his offending. In it he perceptively says “I am starting to learn where my anger is coming from. My offending is all related to my drinking and I fully realise that I need to stop drinking as I cannot actually manage the alcohol, it always manages me”.
[39] The balance of the s 27 report does not demonstrate cultural alienation. Indeed, his family was strongly connected to the local marae and Mr Roberts was required to follow in his father’s footsteps by working at and supporting the local marae.
[40] His parents are still together, although it is clear that his father has modelled a pattern of violence towards Mr Roberts’ mother and to Mr Roberts himself. This history of violence is supported by Mr Roberts’ sister who confirms that they witnessed their father hit their mother “so many times when we were growing up”. The sister also confirms that their father was worse when he was drinking, although he could always be angry and, therefore, violent and abusive.
[41] While Mr Roberts reports older children sexually abusing him when they were sleeping in the wharenui at the marae, the link between this and his current offending is less clear. The report says that:
Causative factors for the current offending may be partially attributed to Isaac’s intrusive and sustained alcohol drinking on the day of the offence, and the knowledge that Isaac has a history of excess alcohol abuse stemming back from an early age that impacts on his behaviour and decision making when intoxicated. Alongside this history and life cycle of alcohol abuse sits this systemic history of angry violence and poor emotional regulation as role modelled by Isaac’s father toward Isaac and towards Isaac’s mother.
[42] However, the report also reports Mr Robert’s partner as saying that she has “an understanding of maybe why Isaac did what he did”. She says:
We had a disagreement the day before, and the day of the offence was Isaac’s 40th birthday and he was drinking with his sister Sharlene and his brother Hubs. For whatever reason Isaac climbed over the fence [to the victim’s place]
… that in part it was about making himself feel better about himself because we had a disagreement and he has often then sought out having sex with me after a disagreement.
[43] I accept therefore that there is a link between Mr Roberts’ exposure to violence in his youth and his own behaviour towards women. His earlier exposure to alcohol and alcohol abuse also has likely contributed to his offending. However, there is nothing to indicate that the alleged sexual abuse is relevant. The sexual aspect of this offending appears to be simply an extension of his violent and disrespectful attitude towards women.
[44] In terms of the discount which should be afforded in those circumstances, there is room for reasonable minds to differ. The five per cent discount strikes me as being at the bottom of the available range but not outside it. In the circumstances, I see no reason to adjust the discount. Were I to do so, it would make only a marginal change to the end sentence and I cannot say the end sentence is manifestly excessive.
Result
[45]The appeal is dismissed.
Solicitors:
Crown Solicitor, Dunedin
Copy to:
J Westgate, Barrister, Dunedin
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