The Queen v Terai Tumataiva Natua

[2003] NZCA 168

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA316/02

THE QUEEN

v

TERAI TUMATAIVA NATUA

Hearing:31 July 2003

Coram:Anderson J
Paterson J
Salmon J

Appearances:  H Duran for Appellant

K Raftery for Crown

Judgment:31 July 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]       This is an appeal against a sentence of six and a half years imprisonment with an order for a minimum period of imprisonment of three and a quarter years, imposed for rape.  The complainant is a member of the appellant’s extended family.  The offence occurred when she was in a deep sleep following an extended period of drinking and socialising.  She had gone to sleep on the lounge in her home to which the appellant and other members of the family customarily had access.  She was woken by the activity of a man having sexual intercourse with her, an act for which a person other than the appellant was subsequently charged.  DNA samples obtained in relation to that inquiry showed that the appellant also had sexually violated the complainant when she was asleep.  The appellant maintained a plea of not guilty until, it seems, the scientific evidence made it unrealistic for him to do so.  He pleaded guilty four days before the scheduled trial date.

[2]       The sentencing Judge considered that the conventional starting point of eight years imprisonment for a defended rape should be increased by one year for aggravating factors identified as the breach of trust implicit in the sexual violation of a person who had extended hospitality and the fact that advantage was taken of a victim in a deep, intoxicated sleep.  That last mentioned feature deprived the victim of any chance of resistance.  In light of those aggravating factors the Judge considered the sentence should, subject to mitigating features, be nine years imprisonment.  He allowed, however, a reduction of two and a half years for the guilty plea, resulting in a final sentence of six and a half years.

[3]       In dealing with the question of a minimum period of imprisonment the Judge considered that the rape of a sleeping woman with, consequentially, the chances of detention being considerably reduced, was extraordinary and in any event the circumstances were sufficiently serious to justify a long minimum period.  The Judge examined the rationale for the legislative provisions for a minimum period of imprisonment, in particular s86 of the Sentencing Act 2002 and expressed the view that the principal reasons for the provision appeared to be a reassurance to the public and to avoid victims having to go through the unnecessary stress of making representations to the New Zealand Parole Board against early release.  As we have mentioned, he imposed the minimum period of imprisonment of half the substantive term.

Appellant’s arguments on appeal

[4]       The submissions advanced on behalf of the appellant had regard to the decision of this Court, delivered yesterday, R v M and D, CA296/02, CA299/02, 30 July 2003.  That decision examined in detail the operation of the minimum term of imprisonment regime introduced by the Sentencing Act.  It happens that D had also sexually violated a sleeping member of his extended family in a house to which he customarily had access.  There a sentence of eight years imprisonment had been imposed, following a defended trial, and a minimum period of imprisonment of four years had been ordered.  This Court held that given its analysis and conclusions in respect of the minimum term of imprisonment regime, the minimum period of imprisonment of four years could not be sustained.  The case could not be considered one where the circumstances of the offence were sufficiently serious to justify a non-parole period of greater length than the statutory one-third of a substantive sentence.

Submissions for the Crown

[5]       Mr Raftery submitted that the sentence of six and a half years, particularly following a belated plea of guilty, was not itself manifestly excessive.  He also submitted that a minimum period of imprisonment could be regarded as warranted but he recognised, with respect realistically, that there were difficulties in supporting the minimum period of imprisonment having regard to this Court’s reasoning and decision in R v M and D. 

Discussion

[6]       We are not persuaded that six and a half years imprisonment is manifestly excessive.  Whilst not inclined to regard those features seen by the Judge to be aggravating as other than typically serious features inherent in the offence of rape, we think the discount for the late guilty plea was generous.  If, subject to a discount for the guilty plea the sentence had been fixed at eight years and the allowance for the plea had been assessed as 18 months, the result would have been unexceptionable.  In short, the ultimate sentence of six and a half years imprisonment is not manifestly excessive.

[7]       As to the minimum period of imprisonment the rationale and method of operation of s86 of the Sentencing Act is explained in R v M and D and does not warrant iteration immediately following the delivery of that decision.  But it is plain both in terms of the principles elucidated in that judgment and the material similarities of D’s case that the appeal against the minimum period of imprisonment in this case must be allowed.

Result

[8]       The appeal against sentence is allowed to the extent that the order made under s86 of the Sentencing Act 2002 that the appellant serve a minimum period of imprisonment of three and a quarter years is quashed.

Solicitors:
Crown Law Office, Wellington