R v Chase [2017] NZHC 244 (23 February 2017)

Last Updated: 23 February 2017

PROHIBITION ON PUBLISHING THE NAME, IDENTIFYING PARTICULARS, ADDRESS OR OCCUPATION OF THE COMPLAINANT, BEING A PERSON AGAINST WHOM AN OFFENCE AGAINST S 128

CRIMES ACT 1961 HAS BEEN COMMITTED, PURSUANT TO S 203

_{CRIMINAL PROCEDURE ACT 2011}

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-087-001073 [2017] NZHC 244

THE QUEEN

v

HOANI JOHN CHASE DEFENDANT

Hearing:	23 February 2017
Counsel:	A Pollett for Crown R O Gowing for defendant
Judgment:	23 February 2017

_{SENTENCING NOTES OF KATZ J}

Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga

Gowing & Co Lawyers Limited, Whakatane

R v CHASE [2017] NZHC 244 [23 February 2017]

[1] Mr Chase, you were convicted of 28 charges following a judge alone trial before me in October last year. The charges largely relate to serious violent and sexual offending against your former partner, over a period of sixteen years. You were also convicted of threatening to kill her son. During the course of the trial you also pleaded guilty to two further charges, one of receiving property stolen in a burglary of the complainant’s home after your relationship had ended and one of possessing ammunition. You were acquitted of a further six charges and two charges were withdrawn during trial.

[2] Full details of your offending are set out in the Reasons for Verdicts¹ I have previously delivered. As those reasons are 113 pages long I will not attempt to repeat all of those details here today. Rather, I will provide a broad overview of your offending, for sentencing purposes.

The offending

[3] One evening in April 1998 a young woman in her early 20s went out with her friends to celebrate her birthday. She met you at a party. You were considerably older than her. She was in a celebratory mood, however, and under the influence of a few drinks she agreed to spend the night with you. That ‘spur of the moment’ decision changed the course of her life. It was the beginning of 16 years of physical and emotional abuse at your hands, which drove her to multiple suicide attempts and left her permanently scarred, both physically and emotionally.

[4] The afternoon following your first night together you returned to her house wearing your Mongrel Mob patch. She told you that what had happened the night before had only happened because she was drunk. Further, she did not want “the gang stuff” in her or her young son’s life. You appeared to accept this and departed. Rejection was not in your vocabulary, however. You returned late that night. The complainant opened her door and said “Hi”, thinking you may have left something behind. Before she could say anything further you punched her hard in the face, knocking her out. When she came to, lying bleeding and disoriented on the

_{floor, her six-year-old son was crying by her side, having been awoken from sleep.}

¹ R v Chase [2016] NZHC 2665.

You were crouching down with one knee on her chest. You were swearing at her and telling her that you were the President of the local Mongrel Mob chapter and that you owned the town. You put a sawn-off shotgun to her head and threatened to shoot her. You then put the gun to her son’s head and said you would shoot him too if the complainant tried to leave you again. She tried to reason with you but you told her to “shut the fuck up” or else you would kill her. You then got up and smacked her in the mouth with the gun, kicked her a few times with your steel-capped boots, and left.

[5] Within a relatively short time of this incident, possibly only a week or so, you returned with several associates, all wearing gang patches. The complainant lived in her own home that she had purchased with help from her mother. You announced that you were moving in. The complainant was in shock. She said “You can’t move in with me”, but you ignored her and moved in anyway.

[6] Not long afterwards, the complainant was chatting to the town constable at the shops about other things. She mentioned to him in passing that she was not happy about you moving in. She knew that he played rugby with you. He offered to speak to you about it, but she declined his offer as she did not want to get into trouble.

[7] The constable must have mentioned something to you, however, because you returned home after rugby training extremely angry. You told the complainant to send her son to her mother’s house. Once she had done so you assaulted her violently and said you would teach her a lesson for “narking”. You punched and kicked her all over her body while wearing your steel-capped boots. You then duct- taped her to a kitchen chair. You left her there for several days, apart from brief periods when you released her to further assault and rape her. Her face was so badly injured from your repeated assaults to her head that you made her put a pillow over her face while you raped her, so that you did not have to look at her. She said in evidence that she just wanted to die. Her body was sore all over. She suffered bruising and injuries to her head, arms, stomach, back, buttocks, genital area and face. She had blood on her clothes. When she tried to speak to you, you just hit her again.

[8] After several days you released her, but told her that if she said anything to anyone it was going to happen again, but next time you would kill her and her son. Not surprisingly, she did not tell anyone about this incident for many years. When her son returned home from his grandmother’s place she explained her injuries by saying that she had been in a car accident.

[9] This incident set the tone for the rest of your relationship. It was a relationship characterised by brutal violence and obsessive control. You were consumed by sexual jealousy and paranoia that the complainant might cheat on you. Many of your violent attacks on her were fuelled by your irrational belief that she was “perving” at other men, or that other men were “perving” at her.

[10] Not long after you had moved in with her you told the complainant to pick you up one night from an end-of-season “shed party” at a kiwifruit orchard. She drove to the party and went inside the shed to get you. For some reason this simple act totally enraged you. You accused her of just walking into the party to be a “slut” and to look at everyone. You left the party with her, but when you reached the vehicle you started punching her hard around the head, giving her a bloody nose. When you got home you again accused her of being a “slut” and started hitting her again, wherever your fists could connect. You then threw her through a glass sliding door. She received cuts all over her body. You continued to kick her while she was lying on the ground outside, with your steel-capped boots.

[11] On another occasion you were enraged because the complainant had to work late. As a result she was late to pick you up from the “gang pad”. When she arrived you were heavily intoxicated and probably also under the influence of drugs. You punched her in the face. You then dragged her to the back of the car, took a tow rope out of the car boot, wrapped it around her neck, slammed the boot shut, and attempted to drive off. She was jerked forward by the rope but luckily managed to free it from around her neck. She fell flat on the road and was dragged a little way, however. Once you saw she had come free you tried to reverse over her. She managed to get to her feet, run away, and hide from you. At the risk of stating the obvious, this incident could have had fatal consequences.

[12] On another occasion you became angry when you went to pick up the complainant from her job at a hotel bar. You accused her of “perving” at a mechanic across the street, whom she had not even seen. You punched her repeatedly around the head while driving erratically, to the extent that she feared for her life and jumped out of the vehicle.

[13] After serving a prison sentence you violently assaulted the complainant on your return home because you had been unable to contact her by telephone as she had no money to pay for your collect calls. After assaulting her you raped her. On another occasion you choked her in front of your young children, almost to the point of unconsciousness, because you thought she had not been paying you enough attention. That assault could also easily have been fatal.

[14] One of the most serious incidents of sexual offending in your relationship, other than the three rapes that occurred during the “duct tape” incident I have already described, occurred following the birth of your twins by caesarean section. The complainant had experienced a difficult pregnancy, spending considerable time in hospital in the weeks before the delivery with serious pregnancy complications, including pre-eclampsia. She later suffered a post-partum haemorrhage.

[15] Four or five days after the birth, the complainant was discharged from the post-natal ward at Waikato Hospital and moved to the Hilda Ross Unit on the hospital site so that she could stay close to the twins, who were in the special care baby unit. You complained to her that your sexual needs were being neglected while she was having a holiday. She said to you “What am I supposed to do? I just had two children” and started crying, because she knew what was coming. She was still in a lot of pain following the caesarean section operation and had stitches in her stomach. Undeterred, you told her to “shut up” and made her get on the bed, where you raped her. She wept throughout and asked you to stop. You did not. Her impression was that you got a kick out of causing her pain, not only on this occasion but throughout the relationship. You left immediately afterwards. She was bleeding heavily, could barely walk and felt like her stitches had been torn. She was later readmitted to hospital with post-partum complications, including serious ongoing bleeding.

[16] Mr Chase, the full details of your offending, as I have said, are set out in my Reasons for Verdicts.² I have attempted to give an overview of some of the most serious offending. I acknowledge that the evidence at trial indicated that your relationship was more violent in the early years and that the episodes of serious violence appear to have decreased over time. Nevertheless, the violence continued intermittently until the final days of your relationship. The evidence at trial also

overwhelmingly established that you were extremely and irrationally jealous. Your paranoia, obsessive jealousy and suspicions regarding the complainant’s fidelity frequently sparked angry, irrational and unpredictable outbursts of anger on your part. These sometimes erupted into violent assaults, several of which I have already described.

[17] Associated with this, you were also very controlling. You controlled the complainant’s outings and movements by giving her a curfew or limiting the time she could be away from home. You restricted her contact with friends and family. She became increasingly isolated. Her personality changed markedly. Witnesses reported that she went from being a bubbly and extroverted young woman to one who was withdrawn, guarded and fearful. She felt that the only way out was suicide. You had serious anger management issues. Anything you perceived as defiance, disobedience or disrespect was a trigger for angry, and often violent, outbursts and attacks.

[18] It is a remarkable tribute to the strength and resilience of the complainant that, despite your 16-year campaign of terror against her, and your constant undermining of her self-esteem, she was eventually able to find the strength to leave you. Your behaviour following the end of the relationship, including multiple breaches of a protection order in the complainant’s favour, reflects your absolute unwillingness to relinquish control over her life, even after the relationship had

_ended.

² Above n 1.

Setting a starting point

[19] The first stage in the sentencing process is to set a starting point. The Crown and defence agree that the appropriate course is to view your offending globally by first taking the sexual violation convictions as the lead offences to determine a provisional starting point, and then uplifting that provisional starting point to reflect the remainder of your offending.³

[20] The lead offences are the charges of sexual violation by rape. The tariff case for this type of offending is the decision of R v AM.⁴ The Court of Appeal in that case established four sentencing bands for rape offending. It is common ground that your offending falls within band four, the most serious band of rape offending. Cases falling within this band attract starting points of between 16 and 20 years’ imprisonment. To determine where in that band your offending sits it is necessary to consider the aggravating and mitigating features of your offending.

[21] The first aggravating feature is that at least three of your rapes were associated with acts of extreme violence. I am referring in particular to the incident where you duct-taped the complainant to a kitchen chair. In R v AM the Court considered that while some violence is inherent in any act of sexual violation, the culpability of the offending is much higher where the extent of violence is “more than mild”. The Court said that “[t]he more serious the overall level of violence, the

more serious the offending”.⁵ Your violence was extreme. Your threats towards the

victim further aggravate the offending.⁶ You told her that if she said anything to anyone about what you had done you would kill her and her son. I note that violence includes not only physical violence, but any form of intimidation designed to assert

_{control or to prevent a victim from reporting the offending.}⁷

³ This approach was followed in R v Te Huia [2016] NZHC 1045; R v Tomar [2015] NZHC 3057;

R v Gage [2013] NZHC 2053 (upheld in Gage v R [2014] NZCA 28); R v Kohu [2014] NZHC

_{134; and R v TN CRI-2009-057-834, 11 November 2011.}

⁴ _{R v AM [2010] NZCA 114, [2010] 2 NZLR 750.}

⁵ _{At [38].}

⁶ See Sentencing Act 2002, s 9(1)(a).

[22] The detention of the complainant for a lengthy period, when she was duct- taped to a chair, is also a seriously aggravating factor. The Court noted in R v AM that the seriousness of the offending increases as the length of the detention increases.⁸ You detained the complainant for days, in a particularly cruel manner.

[23] I note that in addition to the specific instances of rape I have outlined, you were also convicted of a representative charge of rape. This reflects your use of physical violence, intimidation and threats of violence to compel the complainant to have sex with you during the relationship. At other times you were completely indifferent as to consent. Your attitude was one of complete entitlement.

[24] Another aggravating factor is that your rape of the complainant after she had given birth to twins by caesarean section occurred when she was weak and vulnerable, due to serious pregnancy complications followed by the caesarean delivery. In R v AM the Court noted that physical frailty puts the victim in a highly

vulnerable position.⁹ The Crown submits that the complainant was also vulnerable

in a more general sense, as the victim of ongoing sexual, violent and psychological abuse at your hands. In particular she had no way of resisting you when the violations took place in her home. I accept that the complainant was also vulnerable in this broader sense, as a result of the abuse she suffered at your hands over an extended period.

[25] Much of your offending was impulsive, spontaneous and opportunistic. It stemmed from your sense of entitlement, your anger management issues, and your need to assert control over the complainant. There is a degree of premeditation present in some of your offending, however. In particular, the “duct tape” offending involved at least some degree of premeditation, in my view. It was a carefully orchestrated attack designed to terrorise and intimidate the complainant, in order to ensure she never attempted to escape your control or reported your behaviour to

_{authorities again.}

⁸ _{At [40].}

⁹ At [43].

[26] One of the most aggravating features of your overall offending is its sheer scale. While there is no hard and fast rule on how to assess the scale of offending, a “common sense approach to overall culpability” must be taken.¹⁰ You terrorised the complainant over a 16-year period, offending against her repeatedly during that time.

[27] The degree of harm is a further serious aggravating factor. Harm is inherent in sexual violation. The extent of harm, however, impacts on how serious the offending is overall.¹¹ Physical harm indicates more serious offending.¹²

Psychological and non-physical harm is also relevant, however.

[28] The complainant has provided a Victim Impact Statement. It makes for very sad reading. Your counsel informs me that he has read it to you. I did not need to read a Victim Impact Statement, however, to appreciate the extent of the physical and emotional harm the complainant must have suffered. I saw her give evidence in Court for almost a week. It was clear she has suffered greatly at your hands over a period of many years. Your offending has impacted all areas of her life. She has permanent physical and emotional scars. She is impoverished. She attempted suicide a number of times but now, to her great credit, she has completed a social work certificate in suicide prevention. Indeed that was the catalyst for her eventually being able to escape the relationship. Prior to that, however, fear, violence, intimidation and emotional abuse were her constant companions for 16 years. Not surprisingly, she now suffers from post-traumatic stress disorder. And yet without doubt she is an extraordinarily courageous and resilient woman, as evidenced by the courage she showed when giving evidence in this Court. Her story ends, or perhaps I should say begins, on a positive note. I quote from her Victim Impact Statement:

I am going to stop sleeping with a knife under my pillow out of fear. I am going to get my self-esteem and confidence back. I will wear my hair down whenever I want to. I will wear tights every day. I am going to be late when I want to be. I am going to work wherever I want to work. I will talk to whoever I please and make all the friends in the world. I am going to love all my family unconditionally. I am going to play sport. I am going to live the best damn life ever. I am free from you Chase, and I am still alive!

¹⁰ _{R v AM, above n 4, at [49].}

¹¹ Sentencing Act, s 9(1)(d).

[29] Your offending also impacted on the complainant’s son, who is now in his mid-20s. He is a complainant in his own right, as you have been convicted of threatening to kill him. He is also a victim of your offending against his mother. He has provided a Victim Impact Statement and, of course, I also saw him give evidence in Court. He is a very courageous young man. Sadly he has had the traumatic experience of growing up in a home where serious violence against his mother was the norm. He lived in constant fear of you assaulting his mother and would sometimes even stay home from school because he knew that if he was around you were less likely to beat his mother. He spent his childhood walking on eggshells so as not to anger you, knowing that any anger would likely be taken out on his mother. Your behaviour destroyed much of his childhood and caused him to suffer from severe anxiety, depression and panic attacks. He often lived with other family members to try and avoid you. His Victim Impact Statement also ends on a positive note, however. He says:

My life is better these days. I am looking forward to the future and I’m about to start a new job. JC has taught me that violence is not the answer to solving your problems. There are other ways to solve your problems, whatever those problems might be.

[30] That completes my summary of the aggravating features of your offending. I note that a number of the aggravating features I have outlined overlap to some extent. I am mindful of the need not to “double-count” those when setting your sentence starting point.

[31] There are no mitigating factors of your offending, as your counsel frankly acknowledged.

[32] Counsel have helpfully referred me to a number of cases that are broadly similar to yours in that they involve serious violence and sexual offending in a domestic context.¹³ With reference to those cases, and the particular aggravating features of your offending I have outlined above, I have concluded that the appropriate starting point for your sexual offending is 16 years’ imprisonment. This

_{is at the lower end of band four of R v AM.}

¹³ R v Te Huia, above n 3; R v Tomar, above n 3; R v Gage, above n 3; R v Kohu, above n 3; and R

v TN, above n 3.

[33] An uplift of two years and six months’ imprisonment is necessary to reflect the totality of your offending, including in particular the violent offending you committed against the complainant throughout your relationship. Your overall sentence starting point is therefore 18 years and six months’ imprisonment.

Should the starting point be adjusted for personal aggravating or mitigating factors?

[34] I now turn to consider whether there are any circumstances personal to you that justify either uplifting or reducing that starting point.

[35] In my view no uplift is necessary to reflect your prior offending. I agree with your counsel that the principle of totality weighs against any further uplift. On the other hand, there are no personal mitigating factors that warrant a reduction in your sentence. I note in particular that no discount for remorse is justified because, quite simply, you are not remorseful. You have no insight into your offending and indeed you continue to deny it. Your pre-sentence report records that you told the report writer that you are still somewhat bewildered as to the genesis of the charges and subsequent convictions as you were under the impression you were in a relatively healthy relationship. The report writer notes that violence has, to a large extent, been normalised in your life.

Preventive detention

[36] I now turn to consider the issue of preventive detention. The Crown submits that such a sentence is open, whereas your counsel opposes such a sentence.

[37] Preventive detention is an indeterminate prison sentence, under which prisoners may be released on parole but are subject to recall to prison at any time and are subject to the Department of Corrections’ supervision for the rest of their lives. The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.¹⁴ It is imposed when a finite sentence does not offer sufficient protection to the community from an

_offender.

¹⁴ Sentencing Act 2002, s 87(1).

[38] The Court may impose a sentence of preventive detention if three criteria are met, namely:¹⁵

(a) a person is convicted of a qualifying sexual or violent offence;

(b) the person was 18 years of age or over at the time of committing the offence; and

(c) the court is satisfied that the person is likely to commit another qualifying offence if the person is released at the sentence expiry date.

[39] The first two criteria are clearly met in your case. The only contentious matter, therefore, is whether I am satisfied that you are likely to commit another qualifying sexual or violent offence once you are released from prison. If that criteria is met then it is a matter for my discretion whether to impose a sentence of preventive detention.

[40] When considering whether to impose such a sentence I am required to take into account the principle that a lengthy determinate sentence is preferable to preventive detention if that provides adequate protection for society.¹⁶ A sentence of preventive detention should not, however, be regarded as a last resort.¹⁷

[41] There has to be a significant, ongoing risk of serious harm before somebody is imprisoned indefinitely.¹⁸ The fact that an offender had not been previously warned of the possibility of preventive detention, and has never had the opportunity to attempt rehabilitation and reform is a relevant factor.¹⁹

[42] I have been provided with two reports to help me assess your future reoffending risks. One is from a psychiatrist, Dr Brunskill, and the other is from a

_{psychologist, Mr Hughes.}

¹⁵ _{Sentencing Act 2002, s 87(2).}

¹⁶ _{Sentencing Act 2002, s 87(4)(e).}

¹⁷ R v C [2003] 1 NZLR 30 (CA) at [6]: “The sentence of preventive detention is not a sentence of

_{last resort, albeit its imposition must be carefully considered”.}

¹⁸ _{R v Parahi [2005] 3 NZLR 356 (CA) at [85].}

¹⁹ R v Ranga [2014] NZHC 2583 at [29].

[43] I have carefully considered your reoffending risk with reference to those reports, your pre-sentence report, and also the list of obligatory factors the Court must take into account when considering a sentence of preventive detention.²⁰ I have found the issue to be a difficult one, as both Dr Brunskill and Mr Hughes assess you as currently being at a high risk of violent offending in the future. You are at a particularly high risk of intimate partner violence. I must consider, however, whether there is any realistic prospect that your risk profile might improve over the course of your sentence. Your counsel submits that the root causes of your offending

can be addressed during a finite sentence of imprisonment. If so, this would significantly reduce the risk of further violent offending on your release. Dr Brunskill has indicated that you have at least some potential to embrace the necessary interventions, although it is apparent from his report, and also that of Mr Hughes, that there are also many barriers to you being successfully treated.

[44] The Court of Appeal has recognised that the possibility of the Parole Board imposing an extended supervision order is a matter that can be taken into account when determining if preventive detention is appropriate.²¹ The purpose of an extended supervision order is to protect members of the community from those who, following completion of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.²² Orders may not exceed 10 years;²³ but at the expiry of one extended supervision order, a new one can be sought.

[45] If you are sentenced to a finite term of 18 years and six months’ imprisonment your sentence expiry date will not be until 2034, at which time, on my estimation, you will be 72 years old. Your prospects of parole significantly prior to that date are likely to depend on your successful engagement in prison with appropriate treatment programmes. If you are released on parole and you reoffend, you can then be recalled to prison to complete your sentence. Following your final sentence expiry date in 2034 you could then be subjected to an extended supervision order by the Parole Board, if seen as appropriate at that time, which would continue

_{until you are in your 80s.}

²⁰ _{Sentencing Act 2002, s 87(4).}

²¹ _{R v Mist [2005] 2 NZLR 791 (CA) at [101].}

²² _{Parole Act 2002, s 107I(1).}

²³ Parole Act 2002, s 107I(4).

[46] Although the issue is somewhat finely balanced, I have concluded that an appropriate level of community protection can be achieved in your case by a lengthy determinate sentence and the prospect of an extended supervision order at the end of your sentence. You have not previously served a long prison sentence. You have previously attended a violence programme in prison but apparently did not believe it was for you. You have not yet, however, participated in any intensive psychological interventions or rehabilitative programmes. You have indicated some willingness to do so, although I am somewhat sceptical as to how genuine your commitment is, given your denial of the offending and your total lack of remorse or insight. I note, however, that if you are not willing to constructively engage in rehabilitation programmes in prison you may well find yourself in prison until you are aged 70 or older. You could then be subjected to an extended supervision order for a further ten years. That prospect will hopefully increase your level of commitment to the rehabilitation process. Your future is in your own hands.

Minimum period of imprisonment

[47] I now turn to consider what minimum period of imprisonment, if any, should be imposed. You have no insight at all into the offending. You appear to be indifferent to the serious harm that you have caused to the complainant and indeed you deny it. Your sense of entitlement and your refusal to accept any responsibility for what you have done reflects attitudes that are dangerous to the community generally, and extremely dangerous to any future intimate partners in particular.

[48] I consider that the normal one-third minimum period of imprisonment before you are eligible for parole is not enough to deter you from further offending. Nor does it adequately reflect the true gravity of your offending. Rather, in my view, a

50 per cent minimum period of imprisonment should be imposed. This amounts to a minimum period of nine years and 3 months’ imprisonment. The imposition of such a minimum term is necessary to hold you accountable for the harm you have done to the complainant and her son, to denounce your offending, to deter others from offending in a similar way, and to protect the community from you.

Result

[49] Mr Chase, please stand.

[50] On each of the charges of sexual violation by rape (charges 7, 15, 16, 17, 29 and 32), you are sentenced to 18 years and six months’ imprisonment, with a minimum period of imprisonment of nine years and three months.

[51] On each of the charges of threatening to kill (charges 9, 10, 13, 14, 26 and 27), you are sentenced to two years’ imprisonment.

[52] On each of the charges of wounding with intent to cause grievous bodily

harm (charges 2, 8, 11, 20 and 28), you are sentenced to 10 years’ imprisonment.

[53] On the charge of kidnapping (charge 12), you are sentenced to seven years’

imprisonment.

[54] On the charge of injuring with intent to injure (charge 1), you are sentenced

to three years’ imprisonment.

[55] On each of the charges of assault with a weapon (charges 5, 6 and 22), you

are sentenced to four years’ imprisonment.

[56] On each of the charges of injuring with intent to cause grievous bodily harm

(charges 21, 24, 25, 34 and 35), you are sentenced to six years’ imprisonment.

[57] On the charge of sexual violation by unlawful sexual connection (charge 31),

you are sentenced to nine years’ imprisonment.

[58] On the charge of receiving (charge 37), you are sentenced to one month of imprisonment.

[59] On the charge of possession of explosives (charge 38), you are sentenced to six months’ imprisonment.

[60] All of these sentences are to be served concurrently, which means that your total end sentence is 18 years and six months’ imprisonment, with a minimum term of imprisonment of nine years and three months.

_{[61] You may stand down.}

Katz J