The Queen v Maloputunonofo Afamasaga
[2002] NZCA 292
•21 November 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA271/02 |
THE QUEEN
V
MALOPUTUNONOFO AFAMASAGA
| Hearing: | 14 November 2002 |
| Coram: | Keith J Blanchard J Anderson J |
| Appearances: | S P France for Crown M F Tuilotolava for Respondent |
| Judgment: | 21 November 2002 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
The application
The Solicitor-General applies for leave to appeal against the respondent’s sentence of ten years imprisonment for sexual violation by unlawful sexual connection on the ground that it was manifestly inadequate. He does not ask the Court to alter the minimum non-parole period of five years imposed by the Judge under s86 of the Sentencing Act 2002 (the Act). The offending occurred in September 2001 but the sentencing took place after commencement of the Act on 1 July 2002 and it therefore applied to the offending (s5(3)).
Facts
The 24 year old female victim was considerably intoxicated on the evening in question. She was walking home in South Auckland through a car park when the respondent, Mr Afamasaga, struck her on the head from behind and rendered her unconscious. Either in that state, as the Judge found at sentencing, or, at the very least, in a dazed and intoxicated condition, she was put into a motor vehicle in which the respondent and other men were present and conveyed, within a few minutes, to another car park where witnesses saw the respondent apparently having sexual intercourse with her in the vehicle. When the respondent became aware of their presence he dumped the complainant out of the car, naked from the waist down, onto the ground. One witness initially thought the respondent had jettisoned a rubbish bag. The respondent then drove the vehicle off at speed.
Because of her condition at the time, the complainant was unable to say whether she had actually been raped or whether, instead, she had been vaginally penetrated by some other means. What is certain is that there was some form of penetration because she sustained vaginal injuries consistent with forceful penetration. The injuries made it painful for her for some days to relieve herself and in walking, sitting or bathing. The attack has had a very significant effect on her emotional state. She has not responded well to counselling and has developed psychological problems for which she requires medication. Although the physical injuries healed fairly soon, the Judge recorded that:
She is unable to function effectively and her financial circumstances are unlikely to change because of the added burden of accumulated debts when her functioning was impaired. She remains in need of psychological treatment until such time that she is able to resume a normal pattern of life which is likely to take some time.
The respondent was found guilty at trial of unlawful sexual connection, abduction and injuring with intent. He is 28. He arrived in this country from Western Samoa in 1999. He is married with four young children. He has no previous convictions in this country. He continues to deny the offending although his counsel still felt able to inform us that he was experiencing remorse.
The sentencing
The Judge referred to a number of the purposes of sentencing set out in s7(1) of the Act, namely promoting a sense of responsibility for and an acknowledgement of harm, holding the offender accountable, providing for the interests of the victim, denouncing the offender’s conduct, deterring the offender and others from similar offending and protecting the community from offending (paras (b), (a), (c), (e), (f), (g)). He also listed some aggravating features from s9(1) which he saw as being present in the offending: the degree of violence used in rendering the victim unconscious, her unconscious state in which she was particularly vulnerable, dumping her out of the car half naked without any concerns for her dignity and welfare and the continuing physical and mental harm which had been caused to her (paras (a), (g), (e) and (d)). He saw a close match between the s7 purposes and those s9 aggravating factors. He identified as a mitigating factor only that the respondent appeared as a first offender (s9(2)(g)).
The Judge recorded that the Crown had submitted that the respondent should receive a sentence “in the band of 10 to 12 years” and also sought a minimum term of imprisonment under s86. The Judge said that the law obliged him not to impose a sentence which exposed Mr Afamasaga retrospectively to a harsher penalty than if he was sentenced before 1 July 2002. He thought fit to comment that in his judgment the new sentencing regime, and in particular the sentencing principles in s8(c) and (d), “undercut both the policy and the rationale of most pre-July Court of Appeal tariff cases” and that the application of the s8(c) and (d) principles “must inevitably pull sentencing levels up”. But, he said, it was impermissible for him to “drag up the levels with your pre-July offending”. Section 8(c) and (d) provides:
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
…
(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d) must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; …
The Judge said that the sexual violation clearly involved “forceful penetration of the complainant’s genitalia with an object of some sort or possibly by a body part of yours, which caused bruising, cuts and trauma. Beyond that I cannot go”. He considered that, although the offending was serious, it could not be described as the most serious or near the most serious of its type. He therefore did not consider that he was entitled to lift the pre-July 2002 “tariff” or apply “the imperatives of s8(c) and (d)”. If the offending had taken place after 1 July 2002 he would, having regard to the 20 year maximum, “be thinking seriously about a sentence of 14 years…”. He saw such an approach as being prohibited by s6:
6 Penal enactments not to have retrospective effect to disadvantage of offender
(1) An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.
(2) Subsection (1) applies despite any other enactment or rule of law.
Weighing all the matters to which he had referred, the Judge concluded that the appropriate term of imprisonment in respect of the charge of sexual violation was one of ten years which, he said, reflected the totality of the offending. On the charges of abduction and injuring with intent to injure, he sentenced Mr Afamasaga to five years and three years imprisonment respectively, all terms to be served concurrently.
He then went on to consider the imposition of a non-parole period and, as we have indicated, determined that there should be a minimum five year period of imprisonment. Although the Crown does not challenge the non-parole period on this appeal, Mr France expressly reserved its position in any comparable future case.
Argument and discussion
In support of the view that the ten year sentence was manifestly inadequate, Mr France said that, taking into account all the aggravating features, the Judge must have arrived at a term of 11 years before deducting no more than one year to allow for the respondent’s being a first offender. The Solicitor-General’s view was that this gave insufficient recognition to the following aggravating matters: a woman who was obviously vulnerable because of intoxication, hit from behind, rendered unconscious and abducted with the purpose of sexually violating her, with the level of violence throughout being considerable; and the injuries to her vagina had been reasonably severe. There was therefore little basis for distinguishing what occurred from a rape. The Crown’s submission was that the Judge should have come to a 13, or perhaps even 14, year point before deducting a year for previous good character. A sentence of 12 years was sought.
Mr France said that it was not suggested that this case came within s8(c) or (d) or that, if it had occurred after the Sentencing Act commenced, that the sentence ought for that reason to have been any greater. No question of retrospectivity therefore arose. The Judge had simply failed to impose a sentence which was adequate for the offending.
Whilst we generally agree with those observations of Crown counsel, we are nevertheless unpersuaded that the sentence, though it may be seen as lenient, was so far below the available range – put by the prosecutor himself at sentencing as 10 – 12 years - as to be not only inadequate but, in terms of the proper test on a Solicitor-General’s appeal, manifestly inadequate. Although the Crown may sometimes be able successfully to advocate a higher sentence on appeal than it has sought in the trial court (R v Tipene [2001] 2 NZLR 577), this is not in our view a case in which there is a perception that justice has gone wrong in the sentence imposed. A sentence of 12 years would not have been disturbed on an appeal by Mr Afamasaga but, on a Solicitor-General’s appeal, we do not consider that we would be justified in interfering with the sentence which has been imposed. We do not agree with the Judge’s suggestion that a 14 year sentence might have been available.
Before leaving the matter we should make it quite clear that we also do not agree with the Judge’s observation that s8(c) and (d) will lead to a general increase in tariff and other sentences. Indeed, Mr France informed us that this was not the Crown’s view either. It may be that it will be found necessary to reconsider some sentences at the level of very serious offending at which s8(c) or (d) would properly apply. We doubt, however, that this will actually be necessary in cases of sexual violation since sentences very close to the maximum have been imposed both before and after the increase in penalty which occurred in 1993. Where it is required, it does not inevitably follow that an adjustment will be made for offending at a lower level of seriousness.
Any question of restrospectivity in relation to cases which may be affected by s8(c) and (d) is better left until the issue arises in a specific instance. We should not be thought, however, to be indicating a view that those provisions will be found to represent any marked departure from the existing sentencing practice before the 2002 Act (see the commentary in Adams SA8.07 and 8.08 where, incidentally, it is observed that the opinion concerning the general effect of those provisions expressed by the sentencing Judge in this case “seems at best overstated”).
Result
The Solicitor-General’s application for leave is granted but the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
Ferguson Tuilotolava, Papatoetoe for Respondent
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