THE QUEEN v SAMUEL MCCARTHY UTATAO [2002] NZCA 107 (21 May 2002)

IN THE court of appeal of new zealand

ca181/01

THE QUEEN

V

SAMUEL MCCARTHY UTATAO

Coram:	Blanchard J McGrath J Anderson J
Counsel:	Appellant representing himself
	A Markham for Crown
Judgment (on the papers):	21 May 2002

judgment of the court

[1] This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence

[2] The appellant was found guilty following a jury trial in the High Court at Auckland on four counts of sexual violation by rape (one being a representative charge, there being evidence of rape on approximately five to eight occasions in the course of one night), one count of sexual violation by unlawful sexual connection (penis to mouth oral sex), one count of injuring with intent to injure, one count of assault with intent to injure and two counts of injuring with intent to cause grievous bodily harm.At the close of the Crown case the appellant had also pleaded guilty to one count of injuring with intent to injure.In his submissions in response to the Crown submissions the appellant confirms that the appeal which he lodged against conviction has been abandoned. It is therefore dismissed.The appellant also confirms that he is content to have this appeal determined on the papers.

Relevant facts

[3] The appeal is against an effective sentence of nine years imprisonment in respect of the charges involving rape.Concurrent terms of seven years were imposed on the other sexual violation count and five years on the other seven offences.

[4] The appellant and the victim began their relationship in 1989 and had six children together.For most of this period the relationship had been violent. On the evening of 14 August 2000 the appellant accused the victim of sleeping with his uncle before taking her to her bedroom and assaulting her. The appellant hit the victim about the head with both closed fists and an open hand, questioning her repeatedly about her relationship with his uncle.He removed his clothing and demanded she do the same.She complied.The appellant motioned for the victim to perform oral sex on him which she did out of fear of being beaten again.The appellant then got on top of her, forced her legs open and thrust his penis inside her, violently raping her for about 15 minutes.Following the rape he pinned her down with his own weight and beat her and throttled her.This pattern of manual beatings punctuated by rape was repeated throughout the night.

[5] In the early hours of the morning the appellant allowed the victim to go to the toilet but insisted on waiting outside until she was finished to prevent her leaving.He told her she was not going to work. Throughout the day the assaults continued and a further rape took place that afternoon before the victim escaped to a neighbour's address and contacted her parents by phone.

[6] That evening the appellant went to the victim's parent's address and spoke to the victim's father.Having been informed of the facts in relation to his suspicions about his uncle, the appellant told the victim "everything would be ok" and, believing there would be no further violence, she returned to her home.

[7] When she awoke the next morning the appellant rolled on top of her and proceeded to rape her again.The victim did not say anything for fear of being beaten again.Following the rape the appellant again beat the victim about the head with his fists while questioning her about his relationship with his uncle.The appellant struck the victim twice on the head with a radio cassette player from the bedside table causing her to become faint and dazed.He then pulled her out of bed, tied the handle of her handbag around her neck and dragged her along the floor holding in his hand a wooden traditional Maori club known as a patu.As the victim tried to free herself the appellant struck her with the club about her head and body.He struck her at least six times.

[8] The following morning the victim again awoke to the appellant rolling on top of her. Again the appellant raped the victim and she did not say anything for fear of further violence.Following the rape the beatings resumed, the appellant again throttling the victim. The ordeal ended that afternoon after the victim sent her nine-year-old daughter to the neighbours to call the police and the appellant was subsequently arrested.

[9] The victim has suffered swelling and severe bruising to her face, head, throat, genitals and limbs.Her right eye was so badly swollen that she could not see out of it.

Sentencing remarks

[10] The Judge in his sentencing remarks referred to fixing the proper sentence to be imposed on the appellant as "somewhat difficult" having read all of the material attached to the pre-sentence report.The Judge mentioned the support the appellant had, as indicated in testimonials.He was left with no doubt that the appellant had "pulled himself together a number of years ago" and had done well.However he accepted one reference's summary of the appellant's position in the following terms,"People like you adopt simplistic measures when upset with no thought for the consequences, beat up the wife, make love, and everything is back to normal".He accepted that the mistaken belief that the appellant's partner had been unfaithful was the catalyst.

[11] Having noted that both the appellant and his counsel accepted that the appellant would be going to jail and that the appellant was remorseful, the Judge put aside the appellant's numerous previous convictions "because they are really past and a long time ago", the last being in 1991.The Judge said that he considered that the offending was serious.The beating had been prolonged and involved weapons, resulting in grievous injuries and psychological damage. It was obvious, he said, that the victim would be left to overcome some long term difficulties as a result of this treatment.

Grounds of appeal

[12] The appellant has submitted that the sentence does not adequately provide "the due proportion needed between sentences for this kind of offending."In his original written submissions he referred to a number of cases determined prior to 1993.He has also submitted that the aggravating factor of violence taken into account by the sentencing Judge was markedly different from the violence in certain of those cases.It was suggested that the level of violence in those cases had a direct relationship to the intent of the defendants to violate the victims in a sexual manner, whereas in this case the violence arose from a particular dispute.It was also submitted that the Judge had not given adequate allowance for mitigating factors, including the loss of the appellant's partner (the complainant) and children and the effect of the nullification of the appellant's efforts to achieve a professional career (as a teacher) and be free from the remnants of gang life.In the appellant's supplementary submissions in reply he has said that his connections in that respect, and related criminal offending, ceased some 20 years ago.The current offending is said to have been an incident out of character for the appellant, attention being drawn to references provided to the sentencing Judge.

[13] In the submissions in reply the appellant also rebuts the suggestion made on behalf of the Crown that the attacks and violations occurred in the presence of the couple's children.The impact that the offences had on them is accordingly lessened.The appellant has also referred the Court to a number of post 1993 cases and sought to draw comparisons with them to his advantage.He has provided a helpful table of cases.The submission is made that while the starting point in a contested rape case is now eight years, the increase in the maximum penalty was not intended to fetter a sentencing Judge in assessing the gravity of a particular case, allowing the Judge to take into account aggravating and mitigating features in adjusting the sentence accordingly.

Reasons

[14] We are satisfied that there is no merit in the appeal against sentence. It is confirmed by R v R (CA59/99, 15 June 1999) that no separate regime of sentencing is called for simply because the parties are married or have been in a continuing sexual relationship.

[15] Although no specific reference to it was made by the Judge we are satisfied that in this case eight years was the appropriate starting point. The obvious aggravating features were the numerous acts of rape over an extended period and, reflecting the totality of the offending, the accompanying acts of brutality of which the appellant has also been convicted.A sentence substantially above that starting point, and in fact above the nine years actually imposed, would have been fully justified because of the aggravating features.The Judge appears to have taken into account the good the appellant was doing in the community, the fact that this offending has resulted the loss of his partner and children and his remorse, and thus to have arrived at the nine year sentence.

[16] Having considered the suggested comparison with the cases referred to by the appellant, we have no doubt that the sentence which the Judge imposed was within the range available in the exercise of his discretion and indeed was an entirely proper sentence for the totality of this very serious offending.

Decision

[17] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington