R v Akuhata [2017] NZDC 1388 (25 January 2017)

Last Updated: 28 March 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT WHANGAREI

CRI-2016-088-002746

THREE STRIKES WARNING [2017] NZDC 1388

THE QUEEN

v

_{RYAN AKUHATA}

Hearing:	25 January 2017
Appearances:	J Wall for the Crown A Fairley for the Defendant
Judgment:	25 January 2017

_{NOTES OF JUDGE K B de RIDDER ON SENTENCING}

[1] Mr Akuhata, you are for sentence on one charge of sexual violation by rape. That is, having sexual intercourse with the complainant without her consent.

[2] This charge is one that is covered by what is colloquially known as the three strikes legislation, and I am required to give you a warning of the consequences of any conviction for a serious violent offence. You will also be given a written copy of this warning, which is simply that if you are convicted of any serious violent offence, other than murder committed after I have given you this warning, and a Judge imposes a sentence of imprisonment, you will serve that without parole or early release. If you are convicted of murder after I have given you this warning, then you must be sentenced to life imprisonment, which will be served without

_{parole unless that would be manifestly unjust and in that case, the Judge must}

R v RYAN AKUHATA [2017] NZDC 1388 [25 January 2017]

sentence you to a minimum term of imprisonment. As I have said, you will be given a written copy of that warning.

[3] Turning then to the facts of this matter, it goes back to 2014 in fact, when you and the complainant met each other and formed a relationship and regularly stayed together. That included what is described in the summary of facts, as an ordinarily, healthy sexual relationship between the two of you. Although from time to time, it is said that your drinking to excess caused some difficulties but otherwise, there was no problem.

[4] On or about 19 August in 2014, the two of you were at the complainant’s home address. You had been drinking earlier in the day at another place and when you returned to the complainant’s property, the two of you continued to have drinks with the victim’s brother and his partner and as a result of consuming alcohol over the next few hours, the two of you, that is yourself and the complainant, became intoxicated. Later that evening you both went to bed where there was some sexual activity, which was stopped by the complainant as she was feeling unwell from the consumption of alcohol and she told you she did not want to continue. You then began to watch a movie on your laptop, as frequently happened, you had trouble sleeping. After the movie ended, you tried to wake the complainant but she remained asleep; you then engaged in sexual intercourse with her, during which she did not respond at all. After the act, you then physically woke her up and told her what had happened or what you had done and she responded physically, immediately told you to leave, which you did and the relationship ended not long after this particular evening.

[5] No action was taken by the complainant at that point, but she eventually confided in a friend who gave her some advice and the matter came to the attention of the police last year, resulting in you facing this charge and your first appearance on 28 September last year. At a very early stage, you entered a guilty plea to this charge and of course when you were spoken to by the police about it, you also fully acknowledged what had happened. A probation report has been prepared, which essentially simply outlines what I have just traversed in terms of the background. It points to your own personal background and upbringing. It notes that since leaving

school, you have either held full-time employment or attended training courses and programmes and also, and significantly of course, it points to the fact that you appear for the first time in Court on any charge of any sort whatsoever. A factor which, as Mr Fairley has quite rightly said, is something which regrettably, many young men your age in this area cannot claim.

[6] The first provision I must have regard to is s 128B Crimes Act 1961 which says that for offences of this sort, prison must be imposed unless due to the circumstances of the offending or the circumstances of you, that sentence should not be imposed. Put shortly, there is nothing in either of those aspects which requires me to step back from imprisonment and indeed no one seeks to argue otherwise. The next provision I have to have regard to is the Sentencing Act 2002 which sets out the purposes and principles of sentencing and of course, the primary ones in this case are simply to denounce this type of conduct, to deter others from it and also to hold you accountable for your offending. But at the same time, I am also required to take into account the interests of the victim and I am also required to impose the least restrictive sentence that is appropriate in all the circumstances.

[7] Finally, as both counsel have referred to in their written submissions and their oral submissions today, I am required to follow the sentencing process set out in the Court of Appeal case known as R v AM1. Essentially in that case, the Court categorised offending into various bands or groups and then set periods of imprisonment according to the group or band. There is no dispute between the Crown and Mr Fairley for you that you fit in the bottom band or band 1, as it is known. That is where the Court of Appeal said that sentences or starting points of sentence, should be between six and eight years.

[8] As I have said, there is no dispute between the Crown and Mr Fairley that this falls at the bottom end of band 1 and accordingly, I do start with a start point of six years’ imprisonment. Doing so, I note that the culpability factors that are relevant are simply that the complainant was vulnerable, she was obviously clearly affected by alcohol and secondly, she was asleep to the extent that she did not even

_{wake up during the activity and secondly, there has to be said to be a breach of trust.}

1 R v AM [2010] NZCA 114

She was effectively your partner at this time and significantly, although there had been some consensual activity earlier, she had clearly stopped that and said, “No,” and fell asleep. So those are the two relevant factors which persuade me that it is appropriate to start with six years’ imprisonment.

[9] I am then required to take into account any factors that go in your favour and as Mr Fairley has rightly said, there are several in your case. Firstly, there is your age. You were only, as I understand it, around 19 at the time and the principles set out in the Court of Appeal case known as Churchward2 are therefore highly relevant and are strong factors in your case. Given your background and your lack of any previous convictions, your prompt acceptance of what you have done to the point of waking the victim up and telling her, it is highly likely that if you had not done that,

she may well have never known but to your credit, you have not sought to shy away from the very first point.

[10] Secondly, there is your good character; you have no previous convictions as I have mentioned. There is clear remorse demonstrated again by your honesty at the outset with your then partner and continued through when you were spoken to by the police and your early guilty plea. The only factor which causes me some difficulty is Mr Fairley submits that I should also take into account the prior relationship but in particular, the prior activity that night. That particular factor is the subject of comment by the Court of Appeal at paras (56) and (59) to (60) of the case of R v AM.

[11] In my view, this is one of those cases where I should not take that factor into account. I say so for three reasons. Firstly, there is the time lapse. There is no dispute that you watched a movie. A movie can be something in the order of one to one and a half hours, so there was a considerable period of time. Secondly, despite the prior consensual activity, the complainant had clearly said, “No,” and told you so and gave the reason why. So you were well aware of her decision not to continue any further sexual activity. Finally of course, she was asleep at the time. So, whilst I accept the Court of Appeal has said in some cases, prior consensual activity may be

_{relevant, for those reasons in this case, I consider it not to be this case.}

2 Churchward

[12] The issue then is by how much I should reduce that start point to take account of those factors I have mentioned that go in your favour. That is, age, good character and remorse. In my view, a reasonably generous reduction would be one of

18 months’ imprisonment which would take you down then to a sentence of four and a half years. As I have said, you entered a guilty plea at a very early opportunity and the relevant authority then requires me to further reduce that point by a further full quarter. That would be something in the order of 13 months or thereabouts in prison.

[13] The end result then is that on this charge, you are convicted and you are sentenced to imprisonment for a period of three years and four months.

K B de Ridder

District Court Judge