R V ONAARIKI HC AK CRI-2008-404-000313 [2009] NZHC 196 (23 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CRI-2008-404-000313



                                           QUEEN



                                               v



                     
    TAPUATUA HIOMAI ONAARIKI



Hearing:        23 February 2009

Appearances: P Hamlin and L MacDonald for Crown
             P
Tomlinson for Offender

Judgment:       23 February 2009


                         SENTENCING NOTES OF ASHER J




Solicitors:
Meredith
Connell, PO Box 2213 Auckland
P Tomlinson, Level 4, 2 Durham Street East, Auckland Central



R V ONAARIKI HC AK CRI-2008-404-000313
23 February 2009

[1]    Tapuatua Onaariki, you appear for sentence today having pleaded guilty on
7 February 2008 at a pre-depositions
hearing to the following, which relate to two
separate attacks on two different victims within a five week period:


           
  Offence             Date of offence         Relevant         Maximum
                                                         
Sections          penalty
      Attempted sexual           30 August 2007        s 129(1)          10 years'
      violation by unlawful
                           Crimes Act        imprisonment
      sexual connection                                1961
      Sexual
violation by        30 August 2007        s 128(1)(b) and 20 years'
      unlawful sexual                                  128B Crimes
    imprisonment
      connection                                       Act
      Sexual violation by        6 October 2007     
  s 128(1)(a) and 20 years'
      rape x 2                                         128B Crimes     imprisonment
                
                                      Act
      Attempted sexual           6 October 2007        s 129(1)          10 years'
   
  violation by unlawful                            Crimes Act        imprisonment
      sexual connection                       
        1961
      Sexual violation by        6 October 2007        s 128(1)(b) and 20 years'
      unlawful sexual             
                    128B Crimes     imprisonment
      connection                                       Act


[2]    When you appeared
for sentence in the District Court jurisdiction was
declined pursuant to s 90 of the Sentencing Act 2002 on the basis that there
was
reason to believe that you should be considered for a sentence of preventive
detention.


[3]    I state at the outset that I
do not intend sentencing you to preventive
detention.


[4]    Your counsel made extensive submissions setting out reasons why preventive
detention would not be appropriate, and the Crown and the Court have now got the
benefit of four reports, all of which relate to
the issue of your potential to re-offend.
The Crown has responsibly, and correctly in my view, concluded that it should no
longer
make the submission that preventive detention is the appropriate sentence.
Both your counsel and the Crown are to be complimented
for the thorough way in
which they have approached this sentencing process.

[5]    I am going to deal first now with the facts
of your offending.


Offending against AVL


[6]    On 30 August 2007 the first victim, AVL, was walking up Bowen Avenue in
Auckland
City on her way to meet friends. She is a 19 year-old student who resides
in Auckland. You were a stranger to her. It was 1:30 am
in the morning. You came
up behind her and asked her what she was doing. As she answered you grabbed her
by the arms and pushed her
into adjoining Albert Park, which was dark. She
attempted to resist you and tried to break free from your grip, saying "No". You
forced her to sit down at the base of a tree and you sat down next to her. The victim
was very shocked and scared. You put your arm
around her and told her to smoke a
pipe, which you produced. Because she was scared she inhaled from the pipe. It
tasted like cannabis.


[7]    You pushed her over onto her side and placed your hand over her mouth,
warning her "don't scream". The victim said that she would not and got to her feet.
Knowing she was
in danger of sexual assault she removed her high-heel shoes from
her feet. You grabbed her again and dragged her further into the
park. She was
crying and staying "stop". You dragged her up a small bank. You took off your
jacket and laid it on the ground, and
pushing on the victim's shoulders you forced
her to lie down. You moved your face close to her face. She asked you not to kiss
her
but you did twice, forcing your tongue into her mouth. You told her to take off
her tights. Crying, she did so, removing her underwear.


[8]    You knelt in front of her and then pushed your hand or fingers deep into her
vagina. When you pulled your hand out she said
"don't do it again", and you said to
her "I want to fuck you". You started to pull your pants down. The victim, knowing
she was about
to be raped if she did not do something, said to you that she would
give you oral sex, knowing that this would give her a better
opportunity to escape
from you. You let her reposition herself in front of you as if she was going to suck
your penis. You pulled
your pants down and got down on your knees. The victim
positioned herself as if she was going to masturbate you and then she straightened
up
and ran away as fast as she could out of the park, leaving behind her shoes, tights

and underwear, together with all her other
personal effects. She managed to get out
of the park. She hid in an alleyway for a few minutes, and then came out and
flagged down
a passing police car.


Offending against NW


[9]    The second attack took place at 3:00 am, Saturday 6 October 2007. The
second
victim, NW, had been sitting on a park bench in Myers Park with a male
friend. She is an 18-year-old student and was a visitor to
Auckland. She was
intoxicated and needed to use the toilet. She left her friend and went to the toilet in
Myers Park. Coming out
she became disorientated and could not find her way back
to where her friend was. She became lost and eventually sat down on another
park
bench. She vomited and then went to sleep or lost consciousness for a short time.


[10]   You came into Myers Park and saw
her lying there. She was a stranger to
you.   You approached her, at first pleasantly asking if she was alright.         You
suggested
that you should both go to your hotel. When the victim said she did not
want to you grabbed her and dragged her a short distance
away up under a bank and
under some trees to a more secluded part of the park. You pushed her onto the
ground and onto her back.
You grabbed her jeans and underwear and pulled them
off her. You then got on top of her and proceeded to place your penis in her
vagina.
She cried and told you she did not want you to. You were not wearing a condom.


[11]   While you were raping her you held
her down forcefully by her right chest
with your left hand. You told her to "pash you up", meaning that you wanted her to
kiss you,
and you said "If you don't stop crying and pash me I'm going to smash
you". You tried to make her kiss you. The victim is unsure
about how long the rape
went on for.


[12]   You then took your penis out and told her to suck it. When she said she
didn't want
to you forced her head down onto your groin, saying "I'll smash you if
you don't". You forcefully shoved your penis into her mouth,
using your right hand
to hold her hair, and then pulled her head back and forth for five or ten minutes. You
kept telling her to
suck your dick or you would smash her. She was crying.

[13]      You then stopped and told her to turn around. She said she didn't
want you
to but you turned her over onto her hands and knees. You then tried to shove your
penis into her anus. She was able to keep
moving around and stop you from doing
this. You kept on trying for about five minutes. You then turned her back over on
her back
again, and you vaginally raped her again. This continued for about another
five minutes. You then stopped, stood up, pulled up your pants and walked off. You
said nothing to the victim. She
eventually made her way to the nearby Casino and
sought help.


[14]      When you were spoken to by the police almost two weeks
later, you initially
denied but then admitted both of the attacks. You said in explanation that you were
angry with women. I turn
to the situation of the victims.


[15]      In addition to enduring the physical assaults both victims have been severely
traumatised
by what you did. AVL has had trouble sleeping for months and still has
nightmares. She was initially afraid to be at home alone.
She had to move herself
out of Auckland for three to four months. She has suffered post-traumatic stress
disorder and has had to
have counselling, which her parents have paid for. She has
started smoking and she has had to break up with her boyfriend because
she no
longer felt comfortable around him. She has also given up her job because it
involved her going out after dark when she no
longer feels safe. She failed her
university exams, which occurred two or three weeks after the incident, because of
her difficulties
in sleeping and concentrating. Clearly her attitude to men and to life
has been terribly affected by what you did.


[16]      NW
reports that her life has changed since the rape. She says she is a
different person now. She is more reserved and less trusting
of people, particularly
men. She does not feel safe and has flashbacks and nightmares. She does not feel
able to share what happened
with others because she is concerned about what they
will think of her. She feels emotional and angry, and her grades have also suffered
at
school.


[17]      I have already commented briefly on the submissions of counsel. The written
submissions I received were considerably
focused on the issue of preventive

detention which, as I have said, is no longer an issue. In terms of the starting point
for sentence
both the Crown and your counsel agree that a starting point of 11 to
13 years' imprisonment on the totality principle is the correct
approach. They accept
that in assessing the appropriate end sentence and matters relating to you personally,
I should take into account
your early guilty plea, your youth and the remorse that you
have expressed, although there is a different degree of emphasis in relation
to the
latter factor.


[18]     The Crown seeks a minimum term of imprisonment. Mr Tomlinson, your
counsel, while accepting that
it is open to the Court to impose such a term, argues
that it need not be imposed given the particular factors that I will refer
to later.


[19]     I turn to the approach to sentencing. Given the gravity of the effect on the
victims it is worth recording that
s 7(1)(a) requires the Court to hold an offender
accountable for harm done to a victim and the community by offending, and that
sentencing
should provide for the interests of the victim of the offence. Under s 8(f)
the Court must take into account any information provided
concerning the effect of
the offending on the victim. The Court must denounce the conduct in which you
were involved, and deter you
and other persons from committing the same offence.
The community must be protected from you.


[20]     Equally, however, it is
a purpose of sentencing to assist in your rehabilitation
and reintegration.    The Court must impose the least restrictive outcome
that is
appropriate in the circumstances.


[21]     A starting point of eight years' imprisonment for a contested rape was
recommended
by the Court of Appeal in R v A  [1994] 2 NZLR 129. This continues
to be the guideline in relation to rape sentencing. I have been referred to quite a
number of decisions by the Crown
and your counsel. They included R v Haunui HC
AK CRI-2008-004-010135 26 November 2008, Priestley J, where there was sexual
offending
against two sex workers. A starting point of 15 years' imprisonment was
fixed.     I have also considered R v Shepherd HC AK CRI-2004-4-21442
25 July 2006, Williams J, where in relation to a single victim in relation to a violent

rape involving hitting the victim with
a stick, a sentence of 12 years' imprisonment
was fixed.


[22]   I will now consider the appropriate starting point taking into
account factors
relating to the offending. I will then go on to consider matters relating to you
personally.


[23]   There are a
number of specific aggravating features. There was the actual
and threatened violence. You used physical force, for example, the
dragging of the
first victim up into the park, and the forceful holding down of the second victim.
You verbally threatened the second
victim with "being smashed". However, I accept
that the violence was not gratuitous.


[24]   I take into account the physical and
psychological harm you have done to
your victims. I have already referred to this. Coupled with this is the fact that the
victims
were vulnerable young women: one by her presence of mind was able to stop
the first violation becoming much worse; the second, who
was clearly not in a good
way at the time, was not so lucky. They were both vulnerable and begged you not to
proceed. It cannot be
said that the violations were utterly spontaneous. There was
an element of premeditation, although undoubtedly they were opportunistic.


[25]   I am approaching this sentencing on the basis that concurrent sentences are
appropriate and that the end sentence I reach
takes into account the totality of the
offending. Therefore, in assessing the starting point the most relevant factor of all in
considering
an increase on the usual starting point of eight years, is the fact that there
were two separate incidents and two separate dates
(and also multiple types of and
incidents of sexual violation). To reach a sentence on a totality basis therefore
requires a substantial
uplift from the usual eight-year starting point.


[26]   Taking into account all these factors I have concluded that the appropriate
starting point for sentence is a term of twelve-and-a-half years' imprisonment.


[27]   I now turn to matters relating to you personally.
The Crown puts forward
your record as an aggravating feature. Because preventive detention has been at

issue until now, I have
the benefit of reports from not only a probation officer but
also two psychologists and one psychiatrist. Thus the Court is particularly
well
endowed when it comes to considering your history and your attitude to the
offending. The record shows that you have offended
on 39 occasions as an adult.
Prior to that there are previous notations. It is a very alarming history given that
these offences
had all been committed before you had turned 21.


[28]   However, Mr Tomlinson makes the point that many of the offences arise
from
the fact that you live on the street. A great number of them relate to being in
places unlawfully, and most indicate minor offending.
       There is, however, one
significant exception to this. On 19 May 2007 you were convicted of male assault
on a female and sentenced
to six months' imprisonment if called upon. The level of
the assault appears to have been quite serious, although it would be wrong
for me to
place too much weight on what you said about that offending to the experts who
interviewed you. However, the fact that
you were before this offending convicted of
a relatively serious assault charge is, in my view, an aggravating factor, particularly
when seen against the background of years of minor offending on your part. Clearly
you paid no heed to the lessons you should have
learnt when you were sentenced on
that violent charge. I must take this into account in sentencing you.


[29]   I turn to mitigating factors. The
first is your almost immediate acceptance of
guilt and the guilty plea you entered at the first opportunity. This is a significant
mitigating factor and has spared the victims the further anguish of facing a Court
hearing and giving evidence.


[30]   In terms
of your attitude to the offending the reports show that initially you
were prepared to talk about the offending. You accepted that
it had happened and
you accepted that it was wrong. What I have read does not persuade me that you are
fully aware of just how much
harm your actions have caused. Nevertheless, you do
show some appreciation for the effects of your actions, and some wish, which
I
accept is sincere, to address your problems.       One psychiatrist has reached the
conclusion that you show a moderate to high
risk of sexual recidivism, and this is
consistent with what is stated in other reports. You can be described as having a
medium to
high risk of reoffending.

[31]   It is significant in assessing this aspect of sentencing that this will be your
first term of
imprisonment. It appears you may have attended a previous anger
management course, but certainly now that you will be sentenced to
prison you will,
I trust, participate in programs relating to sexual offending. For the first time the
problems that you undoubtedly
have will be addressed by experts.


[32]   The third mitigating factor linked to the issues I have just discussed is your
youth.
You were 20 years old when the offending took place. Of course your youth
emphasises just how bad your record is, but it also means
that there is some basis for
hope that what you will learn in prison and the courses that you take will result in
you not offending
again. I have spent more time on this area than I usually would in
sentencing because what I have said to you will be relevant to
the issue of minimum
term, which I come to next.


[33]   However, standing back and looking at aggravating and mitigating factors
relating to you personally, as I have said, your bad record and in particular the male
assaults female conviction is an aggravating
factor. You would normally be entitled
to a full-third discount for your early guilty plea, and perhaps some small increment
to that
factor in mitigation as a consequence of you showing some remorse and
because of your youth. In this case, however, you have a bad
record and the two are
counter-balanced. I conclude that any adjustment either up or down from the one-
third would be inappropriate.


[34]   I therefore conclude that the appropriate adjustment to the starting point for
factors relating to you personally is a deduction
of one-third.         Applying that
approximately to the starting point, that results in an end sentence of eight years and
three
months' imprisonment.


[35]   I now turn to the issue of whether a minimum term of imprisonment should
be imposed. The matter is
governed by s 86 of the Sentencing Act 2002. The Court
may impose such a minimum term if it is satisfied that the period otherwise
applicable under s 84(1) of the Parole Act 2002 is insufficient. Various purposes are
set out in s 86(2). Here a factor in favour
of a minimum term of imprisonment is the
need to hold you accountable for the harm you have done to the victims and the

community.
I have already set out the great damage you have done in this area.
There is a need to denounce two random rapes of this type.


[36]   The particular matter, however, that I focus on is that referred to in
s 86(2)(d), namely the need to protect the community
from you. I have already in
this sentencing process set out in summary the content of some of the expert reports
that apply to you.
Looking at your position objectively, your bad history of minor
convictions, your move to far more serious offending when you assaulted
your
girlfriend, and now these two offences, with only five weeks in between them, show
a need to protect the community from you. Given your acceptance of guilt and the
awareness that
you show, at least to some degree, of what you have done, there has
to be a real chance that you will overcome while in prison the
tendencies that have
led you to offend. However, your anger against women must be addressed. I
consider that in the circumstances
a minimum term of imprisonment is required.


[37]   Given your youth and the positive aspects of your approach to this offending
that I have mentioned, the minimum term of imprisonment will not be the maximum
of two-thirds but will be a minimum term of imprisonment
of approximately
55 per cent of the full term of eight years and three months' imprisonment.
Applying that percentage again approximately,
results in an end minimum term of
four years and six months' imprisonment.


[38]   Could you stand up please Mr Onaariki. On what
I regard as the most serious
offences, in relation to the first incident, sexual violation by unlawful sexual
connection; and in
relation to the second incident, the two counts of sexual violation
by rape, you are sentenced to eight years and three months' imprisonment
with a
minimum term under s 86 of the Sentencing Act 2002 of four years and six months'
imprisonment.


[39]   On the attempted sexual
violation by unlawful sexual connection, which is
the first count in relation to the first incident, you are sentenced to seven years'
imprisonment. That is also the sentence imposed in relation to the second offence of
attempted sexual violation by unlawful sexual
connection and the sexual violation by
unlawful sexual connection.

[40]   These are lengthy sentences that I have imposed. They
would have been a
great deal longer if you had not immediately accepted that you had done wrong and
pleaded guilty. As you know,
there was a serious issue before today as to whether
you should be sentenced for an indefinite period in prison, which would have
been a
much more severe sentence. The fact that you came so close to that being a sentence
that the Crown sought shows how serious
your offending was. You must address the
anger and the things that led you to what you did.




                                
                    ....................................
                                                                       
       Asher J