R v Epenisa [2017] NZDC 3110 (17 February 2017)

Last Updated: 27 April 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT MANUKAU

CRI-2015-055-002249

THREE STRIKES WARNING [2017] NZDC 3110

THE QUEEN

v

_{BRIAN MOSES EPENISA}

Hearing:	17 February 2017
Appearances:	Y Yelavich for the Crown H Juran for the Defendant
Judgment:	17 February 2017

_{NOTES OF JUDGE S E C McAUSLAN ON SENTENCING}

[1] Mr Epenisa, you are now for sentence following the verdict of the jury in your trial in January, when they returned guilty verdicts on one charge of rape and one of burglary.

[2] I have written submissions from your counsel and from the Crown. I also have the probation report prepared about you and the victim impact statement.

[3] The evidence at trial established that you attended a social gathering at the victim’s home that evening, together with a person described as your friend. There was a considerable amount of drinking going on; it was a celebration at that house. You were not friends of anybody there; however, when it came time to go in the

_{early hours of the morning, you maintained at trial and you still do to probation, that}

R v BRIAN MOSES EPENISA [2017] NZDC 3110 [17 February 2017]

the victim gave her assent to your return. She denied that and by the verdicts of the jury, despite your position, they clearly accepted her evidence in that regard.

[4] The facts then on which you are to be sentenced include that you returned about five in the morning to her home, you got in by some means which was not determined on the evidence and you proceeded to her bedroom and raped her when her three year old niece was also in the room. You stole some items and two cell phones.

_{[5] There is a home invasion element of the offending that increases the}

_{seriousness of it in the Crown submission to band 2 of R v AM.}1

_{These submissions}

are based on a starting point in the range of eight to nine years’ imprisonment being appropriate on the rape charge. The Crown then seeks an uplift of between three and six months to reflect the burglary and that does require an uplift because of the theft of the cellphones, a further uplift of three to six months to reflect your previous convictions for burglary one of which has sexual overtones, in the Crown submission, and I have the summary of facts with respect to that, a limited discount for your youth, you were only 19 at the time, and the Crown also seeks a minimum

_{period of imprisonment to be given to reflect the gravity of this offending.}

[6] In terms of aggravating features, the Crown particularly relies on the planning and premeditation and I accept that there was a degree of that because you deliberately chose to return to that house and gain entry, and there was evidence at trial that you were dissatisfied with the events of the night and accordingly you returned there so that is an aggravating feature. I also accept that you were very intoxicated at the time and the degree of premeditation and planning is possibly somewhat less than the Crown would have the Court accept, but the chief aggravating feature is the home invasion, that the victim was asleep and confronted by a virtual stranger in her house in the middle of the night. The horror or that situation and how she felt about it, and the lingering effects it has had upon her are set out in some detail in her victim impact statement which makes distressing reading. You have had a significant and highly adverse effect upon this young

_{woman’s life and that is likely to continue for some time. So harm to the victim is}

1 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750

also a factor that the Court must consider. In terms of the law, it is the Crown position that this offending falls in rape band 2 where the starting point should be between seven and 13 years, and it is the home invasion aspect of it in the Crown submission that puts it into that band.

[7] Considering R v AM, the facts of your offending do not fit neatly into either band 1 or band 2, but I accept the Crown submissions and in any event in terms of the starting point, it is not going to make a great deal of difference. The Crown also have provided authorities to assist the Court in accepting the starting point that the Crown think as appropriate. Then in terms of the minimum period of imprisonment, it is the Crown submission that the usual parole period would be insufficient to hold you accountable for the harm done to the victim and the community, to denounce your conduct and to deter you and others from committing the same or similar offences and to protect you and to protect the community from you.

[8] Mr Juran’s starting point does not greatly vary from that of the Crown and in the light of the authorities that bind this Court that is hardly surprising. He notes that the decision to return in your intoxicated state has to be accepted as low level premeditation. I accept that submission, but the home invasion is of course highly significant. Mr Juran has also submitted that the fact that property was moved around and there was evidence about that, together with the theft of the cellphones that would suggest that was your primary motive not sexual violation. Well that may be so initially. The victim was vulnerable, she was young, she was also under the influence of alcohol and she was asleep at the time. However, I also accept that your case can be distinguished from those involving extremely young females or very old ones.

[9] Clearly some of the authorities provided by the Crown are far more serious on their facts than this particular case.

[10] A modest uplift in Mr Juran’s submission for the burglary and for your previous convictions, and he has submitted a small discount for your youth one of six months, should be available to you. He also has submitted that the minimum period of imprisonment should not be imposed because you are going to receive a

significant sentence of imprisonment at a relatively young age. You are also going to be subject to the new regime for sexual offenders and so you will be able to be monitored, and you are about to receive the first strike warning. For those reasons therefore in the defence submission, a starting point of seven to eight years is appropriate, with an uplift for your previous convictions and a discount for your youth.

[11] The probation report is not particularly helpful because you simply repeated what you told the jury about your version of the events that night and by the guilty verdicts on these two charges, they clearly rejected your evidence in all material respects.

[12] Accordingly then, on all the factors relevant to your situation, I am satisfied that the starting point on the rape conviction is one of eight years’ imprisonment. I also accept that there must be an uplift for the burglary and that will be for six months. There also has to be an uplift of a further six months to reflect your previous convictions, they are extensive, that takes you to nine years and then a small discount for your youth takes the sentence to eight and a half years imprisonment.

[13] So you are now convicted and sentenced to eight and a half years prison on the rape, and I will accept Mr Juran’s position on the minimum period of imprisonment and I will not impose one.

[14] On the burglary charge, you are convicted and sentenced to two years’

imprisonment.

[15] Given your conviction for rape, you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences.

[16] If you are convicted of any serious offences 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.

[17] 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 period of imprisonment.

S E C McAuslan

District Court Judge