R v Andrews [2020] NZDC 22993 (6 November 2020)

Last Updated: 27 April 2022

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IN THE DISTRICT COURT AT ROTORUA I TE KŌTI-Ā-ROHE KI TE ROTORUA-NUI-A-KAHUMATAMOMOE

CRI-2019-063-003731

[2020] NZDC 22993

THE QUEEN

v

PAUL NGAMOKI ANDREWS

Hearing:	6 November 2020
Appearances:	C Harvey for the Crown S Mills for the Defendant
Judgment:	6 November 2020

NOTES OF JUDGE M A MacKENZIE ON SENTENCING

[1] Mr Paul Andrews, today you appear for sentence in respect of a charge of sexual violation by unlawful sexual connection.

[2] You pleaded guilty to the charge after a sentence indication provided by me on 7 August 2020. The sentence indication was a sentence starting point of six years imprisonment for the sexual violation by unlawful sexual connection, but with a totality reduction to take into account other violence offending by you against [the victim] for which you had already been sentenced.

R v PAUL NGAMOKI ANDREWS [2020] NZDC 22993 [6 November 2020]

[3] The sentence was reduced by three months to take that into account. Therefore, there was a provisional sentence starting point of five years and nine months imprisonment.

[4] I direct that the sentence indication be attached to today’s sentencing remarks. That is because it sets out in a full way the facts, where this falls within the tariff case of R v AM,1 and how I got to the sentence starting point. I also took into account your history and the guilty plea credit.

[5] The principles and purposes of sentencing are accountability, deterrence, denunciation, the need to provide for the interests of [the victim], , to provide for your rehabilitation and reintegration. I must impose a sentence that reflects the gravity of the offending and is the least restrictive outcome appropriate in the circumstances and is generally consistent.

[6] Sentencing is a two-step process. Firstly, to set a starting point reflective of the offending itself and, secondly, to take into account personal factors which may mean the sentence needs to either be increased or reduced, in combination with the credit for a guilty plea.

[7] The issue for today is the extent to which personal mitigating factors to which Mr Mills has referred should reduce the sentence.

[8] In terms of step 1, setting a starting point, as I have said, the starting point for the offending itself was six years imprisonment, but reduced for totality purposes to five years and nine months imprisonment.

[9] I do not intend to refer again to the facts. I simply want to confirm the aggravating features of the offending and to comment on the victim impact statement I have received. That is because at the time of the sentence indication, I did not have a victim impact statement available to me. It is important to acknowledge the impact of your offending on [the victim].

1 R v AM [2010] 2 NZCA 114.

[10] The aggravating features, as I have already set out are:

• (a) That this involved offending in the context of a domestic relationship.
  
• (b) It did occur against a backdrop of control and manipulation by you of [the victim]. In the preceding days, you had threatened to kill her.
  
• (c) The third factor is the impact on [the victim]. Harm is always inherent in this type of offending, but the victim impact statement makes for compelling reading. This incident has had a significant impact on [the victim] and her [child]. It has taken away her sense of safety. She feels guilty for what her [child] has had to go through. She said that her [child] looked up to you and that you were actually very good with her [child]. [The victim] says she blames herself. She does not trust anyone. She worries when she goes out in public. She is looking over her shoulder. In summary, her everyday life will never be the same and she will never stop worrying. Quite clearly, it has impacted on her sense of safety.
  
• (d) What concerns [the victim], Mr Andrews, is her sense and feeling that your family somehow blames her for your situation. Now, I appreciate that you have got very little control over how your family might behave and react while you are in the community, but that is certainly not helping [the victim]. She has been subjected to negative behaviour in the community from your family, and that is adding to her emotional vulnerability arising from this incident, but also, as I understand it, the overall pattern of behaviour by you towards her.
  

[11] I turn to the second step of the sentencing exercise. In terms of personal factors, I said when I gave the sentence indication that there was to be no increase for your history. You do have criminal convictions, but I accepted the submission that no increase was required for deterrent purposes.

[12] In terms of personal factors which might reduce the sentence, Mr Mills has filed helpful written submissions for sentencing today, including a s 27 cultural report. Mr Mills submits that there should be a sentence reduction in the vicinity of 15 to 20 per cent to take into account two particular factors:

• (a) a discount for remorse and/or your offer to participate in restorative justice; and
  
• (b) a discount for matters raised in the cultural report.
  

[13] Remorse is a question of fact and judgment. The Court of Appeal have given some helpful guidance recently about how judges assess remorse in Moses v R.2 It needs to be actually experienced by a person and while it need not be extraordinary, the Courts look for tangible evidence that there is remorse beyond what is part and parcel of a guilty plea.

[14] I do consider that you are remorseful, Mr Andrews. There is not just the letter, but there is information both in the pre-sentence report and the s 27 report which speaks to your remorse. In terms of tangible evidence, you were willing to undertake restorative justice. It is totally up to [the victim] as to whether she wished to participate in that or not, but you did show some insight in terms of the impact on [the victim] and, as noted in the pre-sentence report, you wanted to “man up” and face what you had done.

[15] In the s 27 report, you acknowledged that this was poor behaviour by you towards [the victim] in the round. You have not stepped back from your behaviour towards her and I assess as best as I can that you are genuinely remorseful and, as such, a sentencing credit is warranted.

[16] In terms of the s 27 report, it was a powerful report about your upbringing. You had a difficult upbringing with a dysfunctional home life. Violence was normalised. There was a difficult time in your life when your father tried to commit suicide and was left at that time in a wheelchair. You were subjected to violence. All

2 Moses v R [2020] NZCA 296.

this led to you associating with a different type of family, the Black Power. You turned to substances and violence and use of substances became the norm for you. Your father had a very poor attitude towards your mother and that led you to turn on your mother, as well, at times.

[17] What the report shows also is, in my view, not just remorse but that there are reasonable prospects of rehabilitation. The report shows that you have got insight into the need to change, to rehabilitate yourself, and to rise above your family circumstances.

[18] You will have heard me discuss with Mr Mills the question of a nexus between your upbringing and the sexual offending because, at first glance, it is not all that obvious because there is nothing in your upbringing which would indicate that you would turn to sexual offending. I agree with Mr Mills’ submission that this offending does not show sexual deviance on your part. Your upbringing was marred by violence, emotional abuse, and neglect. But it is difficult to say that there was something in your upbringing which would lead you to sexually violate your partner.

[19] I am prepared to accept to a degree that in an overall sense your behaviour to [the victim] in August of last year was, in an overall sense, part of a pattern to manipulate, dominate, and control her because at the time you threatened to kill her, and you were also violent towards her. It is possible to say that the sexual offending where you forced her to perform oral sex is simply a different expression of that manipulation and control. There is no overt linkage, in my view.

[20] As I have said, what you say about this is that you got on the “P”, you met [the victim], you bashed her, and that you are now charged with sexual violation of her. Really you put it how it is, which was that you got frustrated with her and that led to your physical and sexual violence towards her.

[21] Taking that at its highest, coupled with your difficult upbringing, prospects of rehabilitation and remorse, I consider that a sentencing credit for those factors is 15 per cent. I do not say that there is a clear nexus between your upbringing and the sexual offending, but there is, as Mr Mills has expressed it, some degree of linkage if

I see the sexual violence as a manifestation of control and manipulation, but primarily the 15 per cent reflects what I accept is genuine remorse, your good prospects of rehabilitation, and your adverse and difficult upbringing. I accept that you saw, heard, and were subjected to things that no young person in New Zealand should.

[22] That means that in combination with the guilty plea credit, the discount is 35 per cent. I do not need to go over the guilty plea credit again. I set that at the time of the sentence indication. It was 20 per cent, for the reasons I have already set out.

[23] So from that sentence starting point of five years and nine months imprisonment, I reduce the sentence by 35 per cent, as I have said, which is a reduction of 24 months, or two years, and that reduces the sentence to 45 months, or three years and nine months imprisonment, and I now record that sentence in relation to the charge in the charge notice, which is sexual violation by unlawful sexual connection.

[24] You are formally sentenced now to three years and nine months imprisonment.

Judge MA MacKenzie

District Court Judge

Date of authentication: 16/02/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.