R v Tavo CA500/05 [2006] NZCA 408 (11 May 2006)

Last Updated: 25 January 2014

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA500/05

THE QUEEN

v

_{VILIAMI NAUPOTO TAVO}

Hearing: 9 May 2006

Court: William Young P, Hammond and Robertson JJ Counsel: H E Juran for Appellant

E M Thomas for Crown

Judgment: 11 May 2006

_{JUDGMENT OF THE COURT}

_{The appeals against conviction and sentence are dismissed.}

REASONS

_{(Given by Hammond J)}

Table of Contents

_{Para No}

Introduction [1]

_{The circumstances of the offending [6]}

R V TAVO CA CA500/05 11 May 2006

Mr Tavo’s personal circumstances [11] The District Court sentencing [15] The appeal [18] The Crown submissions [19] Discussion [20]

Introduction

[1] Following trial by jury in the Manukau District Court, Mr Tavo was convicted of one count of doing an indecent act.

[2] Mr Tavo also faced a further five counts of a sexual nature at his trial, arising out of the underlying incident.

[3] On two of those counts the jury returned not guilty verdicts; he was discharged under s 347 on a third count. The jury could not agree on two counts of indecent assault. We are advised that there will not be a retrial on those two counts and the accused has now been discharged under s 347 on both of them.

[4] On the one count upon which he was convicted, on 13 December 2005

Mr Tavo was sentenced to six months imprisonment. He was granted leave to apply for home detention.

[5] Mr Tavo appealed against both his conviction and his sentence. The appeal against conviction has been abandoned in the week preceding this hearing. It is dismissed.

The circumstances of the offending

[6] Mr Tavo is 56 years old. Whilst he was attending a family gathering with his partner, at his partner’s family home, the need arose for Mr Tavo to go to a dairy to make a purchase.

[7] Mr Tavo’s partner’s sister, who was 13 years of age at the time, accompanied

Mr Tavo to show him the way to the dairy.

[8] Mr Tavo in fact drove to the dairy, but then drove past it without stopping. Instead he drove around the corner and stopped between two buildings.

[9] On the verdicts returned by the jury, what has been found against Mr Tavo is that whilst the young complainant was sitting beside him in the front seat he masturbated himself until he ejaculated.

[10] That act has to be put in context. The complainant maintained that Mr Tavo had forced himself upon her, and endeavoured to have sex with her. The events on which those counts rested have not resulted in convictions. But the complainant said in her video interview (which was introduced in evidence) that this act of masturbation occurred right “in front of her face” (only an inch or so away); that “[Mr Tavo] was saying gross words”; and that “[the ejaculate] smelt like sewerage”. On her account, therefore, this was a particularly offensive act, which was reflected in the charge on which Mr Tavo was convicted: that he did an indecent act with intent to offend.

Mr Tavo’s personal circumstances

[11] Mr Tavo came to New Zealand from Tonga. He had a good upbringing and a high school education in that country. He has had a good employment record in New Zealand, mainly as a builder’s labourer.

[12] Mr Tavo has a partner and is supportive of their two-year-old child.

[13] The probation report notes that Mr Tavo claims to be a regular church-goer “and seemingly he has aspirations to become a minister of religion at some time”. He does not use drugs, and drinks very little. He is described by the probation officer as “personable and intelligent”.

[14] As to the offending itself, at the time of sentencing, Mr Tavo continued to protest his innocence.

The District Court sentencing

[15] Judge Epati found the aggravating features of this case to be the “breach of trust” and the complainant’s youth.

[16] As to mitigation, the Judge noted that Mr Tavo never actually touched any part of the complainant’s body. Mr Tavo had no previous convictions and had been a useful member of society.

[17] The Judge found particularly helpful a decision of Randerson J in R v Taipari HC AK 28 January 2000 T 991797. That was a case in which a caregiver at a home for intellectually handicapped persons masturbated on two occasions next to a 47- year-old complainant, while she lay on her bed. Randerson J noted that there was no presumption of imprisonment given that this was a less serious offence than indecent assault. Having considered the breach of trust in that case and the complainant’s vulnerability, a sentence of six months imprisonment was imposed (which was suspended as it could then be under the prevailing legislation), after an allowance was made for the guilty plea which had been entered.

The appeal

[18] The appeal is put on the footing that the sentence actually imposed was manifestly excessive and/or inappropriate. It is submitted that a community-based sentence would have been appropriate “when comparing R v Taipari and the appellant’s personal circumstances”.

The Crown submissions

[19] Mr Thomas submitted that the sentence imposed was within the range available to the Judge, and was not inappropriate in the circumstances of the case.

He referred to R v Taipari, R v Aitken CA251/03 26 November 2003; Ashby v The Police HC HAM 5 November 2004 Randerson J 2004-419-102. The facts of R v Aitken and Ashby v The Police are distinctly different from those in this case.

Discussion

[20] The probation officer viewed this as a serious offence, as did the Judge.

[21] The offending was utterly wrong, and the offence occurred in a degrading way. There is no victim impact report, but what occurred must have had a marked and detrimental impact on the complainant.

[22] There is no prescribed range, let alone a tariff, for lower order sexual offending of this character. The sentence is very much in the discretion of the sentencing Judge, although he or she will of course be guided by sentences, to the extent they are available, in like or at least not dissimilar cases.

[23] The central issue on this sentencing was whether to impose a community- based sentence, or to adopt the course the Judge in fact adopted - a short, sharp shock by way of a limited term of imprisonment. The Judge considered that the offending, in the particular circumstances, was sufficiently serious to warrant imprisonment. He was in the best position, having presided at the trial, to assess the particular context of this act, and the likely overall impact of this offence on the victim. Once a decision is made that imprisonment was the appropriate mode of sentence, it is very difficult to challenge the term of imprisonment actually given in this case.

[24] We do not think it can be said that the Judge was plainly wrong in the course which he took, or that the sentence in fact imposed was excessive.

[25] The appeal against sentence is accordingly dismissed.

[26] We only learned at the hearing that (somewhat surprisingly) Mr Tavo is on bail, which we were told was granted after the sentencing. We have had enquiry made of the District Court and it appears from the District Court record that bail was

granted on 19 December 2005 to “the next event” of the appeal hearing in this Court, which was given a nominal date of 1 February 2006. Mr Tavo was to reside at

2/31 Favona Road, Mangere; he was not to apply for any travel documents; and the bail notice is marked “NB defendant to ring counsel Mr Juran concerning nominal date”. In these circumstances Mr Juran should have, but did not, contacted this Court once the appeal date was known as to what arrangements were to be made for Mr Tavo’s attendance at the hearing, or otherwise. Conventionally, if the appeal is dismissed, the appellant is immediately taken into custody. In the circumstances which now obtain, we revoke Mr Tavo’s bail. He is to present himself to the Registrar of the District Court at Manukau at 10.00am on Friday 12 May 2006 at which time he is to be taken into custody to serve his sentence. Mr Juran should communicate urgently with his client to ensure that he understands his obligation to report as directed. In the event that Mr Tavo does not so present we direct that a warrant issue forthwith for his arrest.

Solicitors:

Crown Law Office, Wellington