R v Tuialii DC Manukau CRI-2010-092-19091 [2012] NZDC 675 (10 May 2012)

Last Updated: 30 September 2016

IN THE DISTRICT COURT AT MANUKAU

CRI-2010-092-019091
_{THREE STRIKE WARNING}

THE QUEEN

v

_{VILIAMU TUIALII}

Hearing: 10 May 2011

Appearances: S Lock for the Crown

N Wintour for the Prisoner

Judgment: 10 May 2011

_{NOTES OF JUDGE A J JOHNS ON SENTENCING}

[1] Mr Tuialii, you appear here for sentence today having pleaded guilty to five charges of burglary, three charges of indecent assault on a girl under 10 years, both these sets of offences carry a maximum period of 10 years’ imprisonment, and one charge of indecent assault, which carries a maximum penalty of seven years’ imprisonment.

[2] The summary of facts you pleaded to was that at the time of this offending you were living in the Flaxmere area in Hawke’s Bay. On 21 February last year at about 4:00 am you went to an address in Montrose Place, Flaxmere. You used a plastic chair you took from the rear of the property to climb through a window into a bedroom occupied by three young girls aged between 9 and 12 years. Once inside the room you stood over one of the girls who was aged 11 and started to masturbate

_{while she and the other girls slept. She awoke to find you leaning over her still}

R V TUIALII DC MAN CRI-2010-092-019091 10 May 2011

masturbating. She slapped you in the face and raised the alarm by screaming and you ran off.

[3] On 31 July last year you went to another address in Flaxmere Avenue, Flaxmere in the early hours of the morning. You stacked bricks beneath a bedroom window, stood on the bricks and climbed through the window into the bedroom occupied by the brother of the next victim. You went from that bedroom to an adjoining bedroom where the second victim who was 17 years old was sleeping alone. She awoke by the sound of you flicking a lighter while standing at the end of her bed. She screamed and you ran off.

[4] On 15 August last year in the early hours of the morning you went to another address at Margate Ave in Flaxmere. You climbed into an empty bedroom through an insecure window, you then went to an adjourning bedroom where the third victim who was 10 years old was sleeping alone. She woke to find you tickling her stomach underneath her bedding and clothing. She screamed and you ran from the bedroom, knocking over her older sister before running out the back door.

[5] On 8 September last year you went to an address in Chelburn Crescent in Mangere in the early hours of the morning and entered through a ranchslider. You went to the room of the fourth victim who was 18 years of age at the time. You stood above her while she slept and began to masturbate. You ejaculated into your underwear and then bent down and kissed her on the face. She woke up and yelled at you. You took her cellphone and charger and left the house.

[6] On 13 September last year you were playing touch rugby with the next victim who was 10 at the time, in the cul-de-sac at the end of Chelburn Crescent. In the early hours of 14 September you entered her bedroom and began to masturbate while standing over her. Before ejaculating you stopped and began kissing her and touching her groin, which caused her to wake up. You then ran from the house.

[7] When you were spoken to by the police you admitted the facts as outlined and said that you broke into the victims’ homes and assaulted them to satisfy your

sexual urges. You have no previous convictions in New Zealand, but are subject to a removal order. You have one conviction for burglary in Samoa.

[8] By way of background the matter first came before me for sentence on

18 February. It was put off to 9 March for your counsel to file submissions in relation to the Crown application that the matter be sent to the High Court for the issue of preventive detention to be considered. Unfortunately, your counsel then had a family emergency and the matter was put off to another date. On that occasion the Crown again sought a further remand which was consented to by Mr Wintour, your counsel to obtain a s 38(2)(b) Criminal Procedure (Mentally Impaired Persons) Act

2003 report to see whether or not there were any significant issues that should be addressed through the sentencing process.

[9] So today for the purpose of sentence I have the Crown’s original submissions, updated submissions, your counsel’s submissions, a full pre-sentence report and the s 38 report that I have referred to.

[10] Initially, the Crown were asking for a starting point of six years or that the matter be sent to the High Court for the issue of preventive detention to be considered.

[11] I indicated on the first occasion that I considered that the starting point set by the Crown was too low. They revised their submissions and have suggested that, taking into account the purposes and principles of the Sentencing Act 2002 and relevant case law, that a starting point of imprisonment of eight years is appropriate.

[12] Mr Wintour is opposed to the application to have the matter sent to the High Court and suggest a starting point perhaps slightly lower than the eight year mark is appropriate.

[13] The psychological report obtained under s 38 Criminal Procedure (Mentally Impaired Persons) Act indicates that this is not a case where preventive detention should be looked at and the Crown accept that.

[14] In terms of the starting point for the purpose of sentence today, I need to take into account a number of matters in relation to Sentencing Act 2002.

[15] Firstly, I need to hold you accountable for the harm done to the victims of your offending, and I have victim impact statements in relation to the victims of your offending.

[16] In terms of the 18 year old victim, she describes herself as being really scared. She thought you were going to attack or rape her. As a result of your offending she does not walk around her neighbourhood and does not talk to strangers. She describes herself as being very careful about which male she talks to, but luckily for her she has an extremely supportive family and describes being grateful that she woke up and managed to scare you off before you did anything else.

[17] In relation to the 10 year old victim, her parents have noticed a change in her personality. Before your offending she was described as a very bubbly and happy little girl, but is now quiet and not very talkative. After your offending she ate very little and stopped going outside to play with other children. They have all been to counselling to learn how best to deal with what has happened to their daughter and how to help her cope in the hope that there will not be any significant long term affects on her. They have also taken step of being in touch with the school so they can keep an eye on her behaviour.

[18] In relation to the other young victims that were in the room that were aged between nine and 12 years, the victim impact statements indicate that after this incident happened all three girls became very afraid at night. Most nights they were waking at 3.00 am thinking that you had got away and you were going to come back. The parents say that they feel like a prisoners in their own home and it saddens them that they will never forget the sound of their daughter’s scream on that night.

[19] In relation to other family affected, they describe the crime as having affected their whole whanau in a way that is quite hard to explain. They describe not being able to sleep well due to every creek and bang around the house, having to get up

and walk around to make sure everything is safe. For a time the whole whanau slept in the lounge with their daughters sleeping beside them to feel safe and protected.

[20] So it is obvious that your offending has had a significant impact on everyone that was either offended against or families of those that were offended against.

[21] Also in terms of Sentencing Act 2000 I need to denounce your conduct in an attempt to deter you and others from like offending. Whilst doing that I need to be consistent in sentencing and impose the least restrictive outcome that I can.

[22] In terms of any aggravating features I need to take into account in setting a starting point, obviously the affect on the victims is an aggravating feature. I also find the extent of your offending to be an aggravating feature. This offending occurred over eight months and it involved five different houses and a number of young females.

[23] My view, taking into account the purposes and principles of the Act and the relevant case law and the principle of totality, is that a starting point of eight years’ imprisonment for each of the offences is warranted here.

[24] I consider this offending has sinister overtones and I am concerned that you were under the influence of alcohol at the times that these offences occurred.

[25] In relation to mitigation, the most compelling mitigating feature is the fact that you pleaded guilty to these charges at a relatively early opportunity and you should be afforded a significant discount for that.

[26] The pre-sentence report indicates that you expressed remorse for your actions and that you were really sorry for what you had done to the victims and you described your actions as not good, and indicated that you would like to apologise to each of the girls for the things you did.

[27] This report writer considered that you are a high risk of re-offending because you could not control your sexual urges and that, combined with the abuse of alcohol, gave rise to the assessment that you are at high risk of re-offending. The

writer also doubted whether you had a genuine motivation to address your offending. That has been tempered somewhat by the s 38 report which describes you as having a low to moderate risk of re-offending and it clearly shows, and it is a more detailed report by an expert, that you do have some insight into your offending.

[28] Taking into account your relatively early guilty pleas, together with your expression of remorse, I am prepared to discount your sentence from the starting point of eight years by two years’ imprisonment and the sentence I intend to impose on each of the charges you face, is one of six years’ imprisonment.

[29] I now turn to whether or not this warrants the imposition of a minimum non-parole period pursuant to s 86 of Sentencing Act 2000.

[30] Under s 86(2) the Court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) Parole Act 2002 if it is satisfied that the period is insignificant for all or any of the following purposes: to hold you accountable for the harm done to the victims and the community by your offending; to denounce the conduct in which you were involved; to deter you and other persons from committing the same offence, and to protect the community from you.

[31] If no minimum period of imprisonment is imposed today, you will be eligible for parole after you had served two years of the sentence I intend to impose.

[32] In my view, given the nature of this offending, it is clearly insufficient to hold you accountable for the harm done to the victims of your offending, and is insufficient to denounce your conduct in an attempt to deter you and others from similar offending and I am also of the view that that would not represent sufficient time to protect the community from you. I am of the view that you should serve two-thirds of your sentence before you become eligible for parole.

[33] Before I formally enter your conviction and sentence you I have to advise you that you are about to be convicted of the first strike offences, in relation to the charges of indecent assault.

[34] Because you are about to be convicted of those four counts of indecent assault, you are now subject to the three strikes law. I need to give you a warning of the consequence of another serious violent conviction. You will also be given a written notice outlining these consequences, which lists the serious violent offences.

[35] If you are convicted of any serious violent offence, other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment, that will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[36] Having given you that warning you are now, in relation to all charges, convicted and sentenced to six years’ imprisonment. You are to serve a minimum non-parole period of two-thirds, which is four years’ imprisonment.

A J Johns

District Court Judge