R v Titoko CA144/96 [1996] NZCA 391 (11 September 1996)

Last Updated: 13 December 2021

TITOKO Kauri Huritu v R

_{Status Court of Appeal Judgments (Archive)}

Court of Appeal

144/96

11 Sep 1996

Henry J - Tompkins J - Anderson J

Appellant: Kauri Huriku TITOKO Respondent: The Queen

Coram No.: 3

Appellant's Counsel: E Paul Respondent's Counsel: D J Boldt Filing date: 3 May 96

Hearing Year: 1996

Keytitles: Criminal Law, Rape, Theft, Sentencing, Mitigation, Age, Statutes: Crimes Act 1961 - Sec

Orig. Sentence: 4 years imprisonment

Judgments: 14496

Criminal Law - sentence - sexual violation by rape - 15 yr old offender - no previous convictions - opportunistic offence - no aggravating features - early plea of guilty - whether sufficient weight given to youth (turned 15 10 days before offence) and to plea - 4 years imprisonment reduced to 3 years. - no jurisdiction to impose cumulative sentence of supervision on imprisonment exceeding 1 year - sentence - unlawful taking of motor car no jurisdiction to imprison for offence not purely indictable

Appeal against sentence allowed - sentence quashed in lieu sentenced to 3 years imprisonment. Cumulative sentence quashed and appellant discharged under

_{IN THE COURT OF APPEAL OF NEW ZEALAND CA 144/96}

_{THE QUEEN}

V

_{KAURI HURIKU TITOKO}

_{Coram: Henry J}

Tompkins J

Anderson J

_{Hearing: 11 September 1996 (at Auckland)}

_{Counsel: E Paul for the Appellant}

D J Boldt for the Crown

_{Judgment: 11 September 1996}

_{JUDGMENT OF THE COURT DELIVERED BY HENRY J}

Kauri Huritu Titoko was sentenced to four years imprisonment on one charge of sexual violation by rape and a

cumulative sentence of one years imprisonment on one charge of unlawfully taking a motor vehicle.

On the afternoon of 29 December 1995 the appellant, who had turned 15 years of age 10 days previously, travelled to the East Coast town of Omaio to stay with relatives. Later that day together with an associate, another 15 year old, he went to a party where they both consumed a significant quantity of liquor. At about 2 am the

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following morning the two youths returned to the associate's home, obtained the keys to and sat in the car owned by the associate's 37 year old mother, and there consumed more liquor. At about 3 am they went inside the house and the associate went to bed. The appellant went into the sitting room where the associate's mother was asleep on a squab on the floor. The appellant took down his jeans and underwear, pulled the covers from the mother and proceeded to have sexual intercourse with her while she slept. The victim awoke shortly after and immediately told him to leave, which he did. He had kept the keys to her car which he then drove to his own residence some 20 kilometres away. The car was given to a gang member and apparently has not been recovered.

The appellant was brought up by his grandparents following separation of his own parents. He has a history of being physically abused during his early years. He left school in Form 2 and has had limited work experience. Reports disclose an alcohol problem and also the regular use of cannabis. He has had an association with the

disability. Although the appellant had previously come to the notice of the Police he has no previous convictions. He pleaded guilty at the first available opportunity.

The primary issue on appeal is whether in imposing 4 years for the rape sufficient allowance was made first for the youth of the appellant and his rehabilitative needs and, second, his early plea. Mr Paul also referred to what he termed the appellant's limited mental development but there is nothing particular in that regard. The appellant is a comparatively mature 15 year old with no intellectual disability as such, although probably of less than average intelligence, he has had a disadvantaged upbringing - all features which are not uncommon. He was sexually experienced and

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had a full appreciation of the nature of his actions, and knows something of the adult world.

It is well recognised that in the case of a young person it will generally be appropriate to reduce, even substantially, the length of a sentence which would have been imposed had the offender been a mature adult. Youth alone however does not automatically justify leniency (R v Accused CA265/88 [1988] NZCA 232; [1989] 1 NZLR 643,645). Maturity, experience in the adult world and general character will all be relevant factors. In R v M (CA131/93) 11 June

1993, which was before the statutory increase in maximum penalty, a sentence of 2½ years imprisonment was reduced to 2 years imprisonment in respect of a 15 year old whose rape victim was also 15 years old. There was a delay in that case of 2 years in the sentencing process, the offender was still attending school, was of good character previously, and with strong family support. In R v Accused (CA521/94) 23 March 1994 a sentence of 2 years imprisonment suspended for 2 years imposed on a 15 year old for rape was upheld, the "exceptional" response being warranted there by the offender's youth, immaturity, and mental retardation. More recently a sentence of 2½ years imprisonment was upheld in R v M (CA271/96) 27 August 1996 in respect of sexual offences including rape by a 16 year old against his younger sister. The offences were historical, not being detected until the offender was 22 years of age, and they began as a form of sexual experimentation. The offence in the present case was opportunistic, it occurred in the victim's own home when she was unable to resist and was associated with excessive consumption of liquor. It had no mitigating features but on the other hand it carried none of an aggravating nature and was limited in its duration. The effects on the victim were less serious than is usually the case.

Having regard to the present maximum penalty, the reduction made by the Judge for both factors of youth and early plea from the starting point referred to in R v

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A [1994] 2 NZLR 129(L), would be of the order of one half. The question is whether those factors are given sufficient weight in that result. It is also relevant to have particular regard to the provisions of s.7 of the Criminal Justice Act 1985 and particularly to Article 37(b) of the 1985 United Nations Convention on the Rights of the Child.

the Judge.

Taking all matters into consideration we are persuaded that 4 years does not fully recognise the need for the sentence to be the shortest appropriate term, to conform with other sentences approved in this Court, and to give full regard to rehabilitation. The appeal is accordingly allowed, the sentence of 4 years is quashed and a sentence of 3 years imprisonment is substituted.

On the charge of rape the appellant was also sentenced to 2 years supervision directed to follow the term of imprisonment. Section 47(1)(a) of the Criminal Justice Act 1985 which was not drawn to the Judge's attention prohibits a sentence of supervision from being cumulative on a sentence of imprisonment exceeding 12 months. It therefore cannot stand, and the appeal in that regard is allowed and the sentence of supervision is quashed.

The appeal also concerns the cumulative sentence of 12 months imprisonment for unlawfully taking a motor vehicle. It is accepted by the Crown that s.8 of the Criminal Justice Act 1985 which was not drawn to the Judge's attention precluded the imposition of a sentence of imprisonment on a 15 year old for this offence, it not being a purely indictable offence as defined. The appeal

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against that sentence is allowed and is quashed. On that conviction the only practical course is to discharge the appellant pursuant to s.20 of the Criminal Justice Act 1985, which we now do.

_Solicitors

E. Paul, Whakatane, for the Appellant

_{Crown Law Office, Wellington, for the Crown}

Appellant's Counsel: E Paul

Respondent's Counsel: D J Boldt

End of Document