R v Tuhura [2017] NZDC 21339 (21 September 2017)

Last Updated: 30 April 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT GISBORNE

CRI-2014-016-001265

[2017] NZDC 21339

THE QUEEN

v

DAVID CHRISTIAN RAWIRI KARAITIANA TUHURA

Hearing:	21 September 2017
Appearances:	F E Cleary for the Crown (via AVL) V L Thorpe for the Defendant
Judgment:	21 September 2017

NOTES OF JUDGE W P CATHCART ON SENTENCING

[1] Mr Tuhura, I am well aware from the documents filed since the jury verdicts you maintain your innocence. You are entitled to do so. As a matter of law, however, I am required to sentence you consistent with the verdicts.

[2] You were found guilty by the jury of two counts of rape and one count of unlawful sexual connection. The jury heard the victim’s evidence initially by way of DVD interview. That was the prime evidence from the Crown case.

[3] As you know, she described how she invited you and your friend, [name deleted], to her house that evening. There was some drinking of alcohol by the three of you in her house. She retired for the evening and went to her bedroom. She left you and the other guest ([details deleted]) in the house. She left the two of you in the

R v DAVID CHRISTIAN RAWIRI KARAITIANA TUHURA [2017] NZDC 21339 [21 September 2017]

lounge assuming you would either stay the evening or find your way back to your own residences.

[4] There was no invitation by her for you to have sex with her or for you to enter her bedroom. However, you chose to enter her bedroom and, in doing so, you abused your position as a guest in that house. You abused that trust she placed in you by entering the sanctity of her bedroom.

[5] She then describes you jumping on the bed. She asked what you were doing. You told her you wanted to have sex with her. She said, “No” and went to roll away from you. She said she did not want to do anything like that because she considered you (to use her words) “a bro”. You then grabbed her and pulled her towards you. You grabbed her around the throat and told her to “shut up”. She kept pleading by saying, “No”.

[6] You, however, pulled her hair and jumped on top of her. She had her legs closed at that point. You told her to open her legs and she would not. You then forced her legs apart. She cannot remember how her pants had come down but you then performed the first rape upon her.

[7] She described how during the rape you were at times maintaining this choking position and demanding she look into your eyes. She said you commented, “You’d better fucking look me in the eyes bitch.” You made a further comment, “You are going to fucking do everything I tell you bitch.” At one point during this incident, she screamed out. You put your hands over her mouth, told her to shut up and then continued with the sexual act.

[8] Matters did not end there. You demanded she perform oral sex on you, threatening her if she injured you in that act. You said to her that if she bit you, it would be “the last breath [she] takes.” You then forced her head onto your penis. Having performed that act, you then demanded she sit on top of you. She said your words were, “I want you to ride me.” This relates to the last act of rape. She did this because she was afraid. She was afraid that if she did not do it, having heard your

previous threat about the last breath she would take, she feared what might occur to her. So, the act was performed under that cloud of fear.

[9] After those three violations occurred, she says you went to sleep. She then seized the opportunity to leave the house. She grabbed some clothes and left. The authorities were contacted at a later point in the sequence of events.

[10] I have read the victim impact statement. That statement records this violation has had a deep psychological effect upon the victim. She describes being torn apart. She describes that during the attack she was made to feel weak, worthless and treated like a piece of meat. She says that a long time after the attack she continued to feel scared, ashamed, hurt, angered and that she has taken a lot of help from counsellors to deal with this emotional turmoil.

[11] I now look at the aggravating features of this offending. The obvious feature that stands out is the scale of offending, albeit it occurred in the bedroom on one evening. It involved three separate acts of violation including two counts of rape. The other aggravating factor is the use of violence towards her during the incident and threats of violence to her. In particular, I refer to the act of placing your hand around her throat and threatening her in a manner that compelled her to perform at least the last act of rape.

[12] Your counsel is correct that this particular offending may not involve the degree of planning and pre-meditation recognised in the cases as constituting such an aggravating feature. Ms Thorpe refers me the Court to the Court of Appeal decision in Taylor v R.1 There, the Court reminded the lower Courts that where premeditation is limited to the formation of the necessary intent it will not ordinarily constitute an aggravating factor.

[13] There was some evidence you may have had sexual designs upon this complainant. However, I formed the view you decided to carry out these sexual acts at the point you decided to enter that bedroom and not before. Hence, I do not accept

1 Taylor v R [2012] NZCA 348.

there is a discrete aggravating feature of planning and premeditation beyond that inherent in the offending itself.

[14] This offending also has had profound psychological harm to the complainant and that is an aggravating feature. I do not accept she was, in any special way, “vulnerable” as that term is used in the case law. There is no evidence you knew she was in a mentally fragile state. Ms Thorpe is correct the notion of vulnerability of the victim is really dealing with special characteristics of the victim such as health, age, mental impairment or physical frailty, as examples. What can be said is that you did abuse the trust she placed in you as a guest in the home by violating the sanctity of her bedroom.

[15] There is a need to impose a sentence that deters and denounces your conduct and holds you accountable for the harm you have caused to the victim. Also, I must ensure the final sentence is one that is the least restrictive in the overall circumstances to the extent possible. Also, I need to maintain consistency with other case law. It is here the real issue of the sentencing exercise lies today.

[16] The Crown referred me to the tariff case in R v AM.2 There, the Court set different bands with different starting points. The Crown submits your case falls at the top of band 1 or the lower end of band 2. In particular, they refer me to an example of a case at the lower level of band 2; namely R v Dunick3. The Crown then submits a starting point of eight to nine years is appropriate.

[17] Ms Thorpe submits that starting point is too high. She submits that looking at the aggravating features the appropriate starting point is seven years, but at the most eight years’ imprisonment.

[18] With great respect to both counsel, I consider what has been missed in the identification of aggravating features is the additional element of violence that is associated with the incident and the threats of violence towards the victim. Under R v

2 R v AM [2010] NZCA 114, [2010] NZLR 750.

3 R v Dunick [2008] NZCA 482.

AM, I consider the Crown submission that this case is reasonably similar to Dunick is an accurate observation.

[19] In Dunick, the offender and the victim were friends for about six weeks. The victim invited the offender to her house. There were some previous text exchanges between them. However, on the offender’s arrival, the victim rejected his advances. He, however, violated her by digitally penetrating her causing her pain and then penetrated her with his penis. He made her kneel on the bed and again penetrated her while slapping her buttocks. He made derogatory sexual references to the victim. She eventually escaped.

[20] Whilst not a case that is an exact parallel to yours, because no two cases are the same, there is a broad similarity between that case and your one. The Court in R v AM placed the Dunick case at the lower end of band 2. In Dunick, the Court upheld a starting point of nine years’ imprisonment. In my view, looking at your case, the appropriate starting point for the offending is eight and a half years’ imprisonment for totality purposes.

[21] Regrettably, Mr Tuhura, there are no mitigating factors in relation to the offending. Also, there are no real personal mitigating factors I can take into account in reducing the sentence. I do not intend to uplift the starting point to reflect your previous convictions. These convictions have no relevance to the seriousness of the offending you now face sentence on.

[22] I accept you have the right to maintain your innocence and no doubt you will exercise your right of appeal in due course. Because of that I cannot take into account any other factors on your behalf to reduce that starting point.

[23] The sentences are as follows:

• (a) On each count of rape, you are sentenced to eight and a half years’ imprisonment.

• (b) On the charge of unlawful sexual connection, you are sentenced to six years’ imprisonment.
  

[24] All sentences are concurrent. That means a total sentence of eight and a half years’ imprisonment.

W P Cathcart District Court Judge