TEEPA v R [2004] NZCA 161 (27 July 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA79/04THE QUEEN

v

MATTHEW JAMES TEHAU TEEPA

Hearing: 20 July 2004

Coram: O'Regan J Panckhurst J Paterson J

Appearances: R G Glover for Appellant
M F Laracy for Crown

Judgment: 27 July 2004

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction

[1] Mr Teepa was sentenced on 28 January last to a term of seven years imprisonment on charges of sexual violation, attempted rape, and kidnapping. A minimum term of imprisonment of four years was imposed. He now appeals against that minimum term.

Background

[2] Mr Teepa pleaded guilty at an early stage to the three charges. He also faced a number of other charges to which he also pleaded guilty. Those, which had nothing to do with his major offending, were failing to ascertain injury after a motor accident, careless use, theft of property valued at $40, theft of property valued at $940, and failing to comply with a direction that he not drive.
[3] Mr Teepa met the victim at a hotel bar. Both were affected by alcohol. She returned with him to his room at the local backpackers for further drinks, where he asked her to have sex with him. She refused and started to leave.
[4] Mr Teepa then grabbed the victim, threw her on to his bed and punched her in the head. When she attempted to cry out, he placed his hands around her throat and squeezed tightly. He then made her undress, removed his own clothing and attempted to have intercourse with her. When he was unsuccessful, through physical failure, he performed oral sex on her in spite of her pleadings for him to desist. Mr Teepa then compelled the victim to have a shower with him and asked her to commit oral sex on him, which she refused to do. At that stage he assaulted her. Finally, he forced her to orally stimulate him. When she tried to escape, he forced her back into his room and threatened that if she contacted the police, he would track her down. The victim then left his room and returned to her home.
[5] As a result of this incident, the victim received cuts and bruising to much of her body, including her throat, where the defendant had attempted to strangle her, a bite to her neck, bruising round the face and upper chest, and bruising to both arms which resulted from Mr Teepa pinning her down.

The sentencing

[6] Judge Erber, after noting the facts, referred to the pre-sentence report in which the probation officer highlighted an allegation by Mr Teepa that he was sexually abused when young, that he had an alcohol problem and was affected by liquor at the time of the offending. The Judge noted that this could not be taken into account as a mitigating factor. Mr Teepa’s remorse for the hurt which he had inflicted on the victim was noted. In the victim impact statement, the victim acknowledged that she was probably drunk, and that she could not do much to resist Mr Teepa’s advances and assaults because he was much larger than she was. She resisted as violently as she could. The Judge noted that the complainant “seems to me to have been a pretty strong sort of a woman in terms of character and the victim impact report has a distinct philosophical note about it.”
[7] The Judge took as aggravating features the actual and significant use of violence, that Mr Teepa was on police bail at the time, not having answered minor charges in the District Court in relation to which warrants of arrest were issued, the victim was drunk and vulnerable, previous convictions for sexual offending, the length of the incident which was measured in hours rather than minutes, and that there was an element of predatory conduct.
[8] The major mitigating factor taken into account was the very prompt plea of guilty which the Judge said indicated and supported submissions of Mr Teepa’s remorse. The Judge also had regard to Mr Teepa’s background.
[9] The Judge considered the totality of the offending, the aggravating features already noted, the fact that sexual violation occurred twice, and that violence, while not gross, was significant and disabling and was for a lengthy period. The victim’s detention was lengthy and frightening, and the Judge noted she was “in justifiable fear for her life.” In the circumstances, he applied the totality principle and fixed a starting point of ten years imprisonment. He then fixed a discount of three years for the plea of guilty, giving a term of seven years imprisonment.
[10] In considering the Crown’s submission that a minimum period of imprisonment should be imposed, the Judge addressed three questions. Firstly, were the circumstances of the offences sufficiently serious to justify a minimum period of imprisonment? Secondly, if the offending qualified, should a minimum period of imprisonment be imposed? Lastly, if a minimum term above the statutory minimum term of one third was to be imposed, what should it be?
[11] In coming to his conclusion, the Judge took into account that the imposition of a minimum term of imprisonment would conflict with Mr Teepa’s rehabilitative inclination and certain psychological problems which he was motivated to work on. However, he considered that the offending was “sufficiently serious” to justify a minimum period of imprisonment and that such a minimum period should be imposed. He then said:

In assessing the length, I have to have regard to the provisions of ss7, 8 and 9 and I weigh in the balance the plea of guilty again. The circumstances of the offending, the aggravating features, and the previous convictions indicate that a minimum period is necessary because of the gravity of the offending and I fix it at four years.

Appellant’s submissions

[12] The ground of appeal was that the minimum period of imprisonment was excessive. Mr Glover, for Mr Teepa, conceded that he could not challenge the imposition of a minimum period in the circumstances of this case. However, he submitted that the Judge erred in not following the direction of this Court in R v Brown [2002] 3 NZLR 670, when it said at paragraph 34:

It is at this stage that all the sentencing principles in ss7, 8 and 9 require consideration. It would be wrong simply to go to the point of two thirds of the sentence without carefully reviewing the circumstances of the offence and of the offender.

[13] The circumstances of the offender were said to be:

1. The significant background of trauma in Mr Teepa’s life warranted ongoing assistance from the Regional Forensic Psychiatric Multi Disciplinary team;
2. Mr Teepa has a strong desire for his psychiatric issues to be addressed within his prison sentence. He is very motivated to deal with his problems and was hugely remorseful about his offending;

100. The minimum period of imprisonment creates an undesirable impediment to his rehabilitation in the sense that if he makes sufficient progress, the Parole Board might see fit to release him into a community based programme for the continuation of his therapy.

On the basis of these submissions, this Court was asked to reassess the appropriate minimum term of imprisonment in light of Mr Teepa’s circumstances.

Crown’s submissions

[14] In respect of the appropriate minimum period of imprisonment, Ms Laracy submitted that the seriousness of the offending is the primary guide to the length of the period. However, she acknowledged that the circumstances of the offender were relevant and that any credits appropriately recognised in fixing the sentence should not be erased when imposing a minimum term of imprisonment. Further, she submitted that it was not necessary for a Judge to specifically refer to each arguably relevant principle or purpose in ss7, 8 and 9 of the Sentencing Act when fixing the term of the minimum period of imprisonment. It is sufficient if the factors relevant to the sentence have already been identified and, in accordance with the Court’s approach in Brown, credit for the mitigating factors is given and the appellant’s circumstances are considered. This is because the matters relevant to the minimum term of imprisonment are also those relevant to the nominal or head sentence and, in a proper sentencing exercise, they have already been canvassed. This was the position in this case. There was no apparent error in principle in the matter in which the Judge fixed the minimum period. The circumstances of the offender should not be given so much weight as to undermine the primary objections of s86 of the Sentencing Act.

Discussion

[15] Mr Glover was, in our view, correct in conceding that the “sufficiently serious” threshold was crossed in this case. This was serious offending of its type. In our view, the Judge correctly exercised his judicial judgment when determining that a minimum period of imprisonment should be imposed.
[16] Having determined that a minimum period of one third of the length of the sentence would not be sufficient to punish, deter, and denounce the offending, it was necessary for the Judge to fix a minimum non-parole period which sufficiently punished, deterred and denounced Mr Teepa’s offending. As stated in Brown, when doing so, the Court should not give the impression of erasing those credits given for mitigating features when fixing the nominal or maximum length of the sentence.
[17] Mr Glover’s point was that it is apparent from the comments, quoted in paragraph 11 above, that the Judge effectively erased the credits which Mr Teepa had received in fixing the nominal sentence because the term of four years was fixed “because of the gravity of the offending.” We do not accept this submission. The Judge referred specifically to having regard to the provisions of ss7, 8 and 9 of the Sentencing Act and to weighing “in the balance the plea of guilty again.” Notwithstanding the manner in which the Judge expressed his finding, we are satisfied that he took into account the mitigating features. A Judge will have reviewed all the relevant factors when fixing the nominal sentence. It is not, in our view, necessary to refer specifically to those factors again when determining the minimum period of imprisonment, although, for the purposes of informing the prisoner and other interested parties, it is preferable to indicate the main features which have been taken into account in determining the appropriate sentence to punish, deter and denounce as well as the mitigating features. In this case, the Judge did refer to the main mitigating feature, namely the plea of guilty.
[18] After considering the relevant principles contained in ss7, 8 and 9 of the Sentencing Act, the sentencing Judge is required in his or her discretion to determine the appropriate minimum term of imprisonment required to punish, deter and denounce. It is only if the term so fixed is either manifestly excessive or manifestly inadequate that an appellate Court will intervene. In the circumstances of this case, we do not consider that a minimum term of imprisonment of four years is manifestly excessive when compared with the maximum minimum term available of four years eight months. This was serious offending of its type, and the sentence imposed does not erase the credits given in the nominal sentence for mitigating features.

Result

[19] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington