R v Tutu HC Napier CRI-2010-041-000163 [2011] NZHC 350 (4 February 2011)

Last Updated: 2 June 2011

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI-2010-041-000163}

THE QUEEN

v

AMOS WHITI TUTU BRYAN CARTER

Counsel: C R Walker for Crown

A J S Snell for Prisoner Tutu

R B Philip for Prisoner Carter

Sentence: 4 February 2011

_{NOTES ON SENTENCING OF GENDALL J}

[1] Amos Whiti Tutu and Bryan Carter, you both appear for sentence having been found guilty by a jury in the Napier High Court of various sexual crimes. For you, Mr Tutu, they were sexual violation by rape, sexual violation by unlawful connection and in addition, assault on a female. For you, Mr Carter, you were found guilty of attempted sexual violation by rape. The facts upon which I sentence you are discerned from the evidence that I heard, having presided at your trial.

[2] On New Year’s Day, 1 January 2010, you both were engaged in an extensive drinking session with a group of men and women. Alcohol had a lot to do with what

_{happened. Not only had it affected the complainant, but also you both. You were}

R V TUTU AND ANOR HC NAP CRI-2010-041-000163 4 February 2011

members of the Mongrel Mob and members of that association and others were present at the address of Mr Carter. A number of women were present, including the complainant who was in her late twenties. She had been attending other social functions throughout the night of New Year’s Eve and, as I have said, had consumed considerable alcohol. But she was a mature woman who went to Mr Carter’s place having no concern or fear about socialising there in the presence of your group and indeed, a member of her family had some connection or even affiliation with your gang.

[3] The complainant had not slept for about 36 hours and in addition was intoxicated. During the afternoon of New Year’s Day she was head butted by you Mr Tutu, it seems apparently for no reason other that you were showing or displaying your contempt and power generally over women. Your convictions for assaulting females illustrate that propensity. It surprised and shocked the complainant but she did not, to her regret I am sure, leave. Indeed, without help from others she could not do so. Some time later in the afternoon she went and lay down in a bedroom at the home of Mr Carter. She had had far too much to drink, had no sleep for many hours and was exhausted. She either passed out or quickly fell asleep but woke to find that Mr Tutu was having sex with her. Mr Tutu had penetrated her and was engaged in the full act of sexual intercourse. She said she did not consent and simply did nothing because of her condition and fear of Mr Tutu. She was drunk, tired and scared. Mr Tutu then placed his penis in her mouth, she being powerless and did not consent. She then lapsed back to sleep and Mr Tutu left the room.

[4] At some stage, either before, during or after those events, Mr Carter had observed Mr Tutu and the complainant together in the room, but the evidence does not go so far, and indeed does not suggest, that he saw the sexual acts. However, Mr Carter thereafter went into the bedroom. He denied entering the room at all. Clearly that denial was rejected by the jury’s acceptance of the complainant’s evidence. That evidence was that Mr Carter endeavoured to perform sexual acts upon the complainant. He removed his pants and tried to penetrate the sleeping or unconscious woman by having sexual intercourse.

[5] The complainant’s evidence was that:[1]

I sort of came to and then I must have gone unconscious again and then when I came to again Carter was trying to stick his dick inside me. I pleading [sic] with him to stop. He kept trying, kept trying and then he couldn’t get it in so he just went all limp and I slid out from underneath him, put my pants back on and ran out.

[6] As I have said the defence position for Mr Carter and his assertion was not that the complainant consented or that he had such belief, but that he never entered the room and it was not him who performed those acts. So the issue of identity was squarely in issue. The jury obviously accepted the evidence of the complainant who clearly identified Mr Carter and said that it was he who had commenced sexual actions or activities and endeavoured to penetrate her fully, but for various reasons was unable to complete the sexual act by him penetrating her vagina or genitalia with his penis. It was only through his temporary impotency perhaps arising through alcohol and through her resistance, that he did not complete the full act of penetration.

[7] The complainant was angry, crying and left the house quickly, abusing the accused as she went. By then it was late in the day and it seems that there were no other persons present in the home that she could see who could give her any transport. So she sought assistance and help by the use of a telephone from a neighbouring home. She made what would have been in previous times called an immediate complaint. A tampon that she had been wearing had been forced deeply inside her body so that she needed medical attention to have it removed. Consequently, she was assessed by a doctor and photographs taken of some bruises on her face and body.

[8] When each of you were interviewed you, Mr Tutu, admitted the sexual connections in which you were involved and said they had occurred but contended that the complainant consented. The jury obviously rejected that explanation or any claim that you had reasonable grounds for having such belief. For you, Mr Carter, your explanation was to deny having gone into the room or had any sexual contact

with the woman. But, as I have said, the defence being a challenge to identification obviously was rejected.

[9] In general and summary terms, the actions of you both were those of abusive men taking advantage of a helpless, comatose, intoxicated and foolish woman. No doubt it was done for your own gratification. Whether a woman or girl is foolish or not, or drunk or not, or gets herself intoxicated, or is asleep, or has passed out, or is sexually experienced or not, all women have and are entitled to the protection of the law. They are not objects to be used for the sexual gratification by men.

[10] You both have an unimpressive history of criminal convictions. You, Mr Tutu, have 16 previous convictions, including two for assaulting females, which is indicative of a disturbing attitude towards women. I accept that one of those convictions for assaulting a female occurred on 15 June 2010, that is six months after this rape and clearly when you were on bail. It is not aggravating therefore for sentencing purposes because it came later and you will not received an increased sentence because of that. But you cannot call in aid to any claim that you are of good character, nor deny that you have some difficulty in dealing with a propensity to exact violence on women. You, Mr Carter, have a lengthy criminal record, largely historical but it includes four for assaulting females in domestic associations and ten blood or breath alcohol driving offences. So you clearly have a problem with alcohol.

[11] I turn to the general approach the Court must take for sexual violation offending and for attempted sexual violation. You have heard counsel refer to the case of the R v AM[2] where the Court of Appeal set out some new guidelines, or said to be new guidelines, to be applied for sentencing for sexual crimes that take place after 31 March 2010. But the reality is that sentencing levels for sexual violation in January 2010 in terms of the factual circumstances of your offending would not have been realistically different from those set out in R v AM. The Court identified some factors to assess the culpability, which are to be considered in conjunction with all

relevant circumstances of the crime and the offender. These include the

vulnerability of the victim, whether due to age, health or other factors. In this case the woman was intoxicated and asleep. That made her especially vulnerable and it matters not that her intoxication was self-induced. She had no or little ability to escape or resist.

[12] The scale of offending is also relevant, and includes associated degradation or indignities. In this case they were present only to a moderate level in respect of you, Mr Tutu. The second offence of penetration of the complainant’s mouth by your penis is aggravating, but part of the one course of events. It is frequently the case that where there is a rape, or unlawful sexual connection, other indecencies such as indecent assault occur. In some cases a potentially mitigating factor may be a mistaken belief in consent. That is, there may be cases where the belief whilst unreasonable was genuine and may be a factor which reduces culpability. Now you, Mr Tutu, defended on the basis that the victim consented or you believed that she did. But I do not consider that any such belief, even if it existed, is genuine to reduce culpability. Where a woman was asleep, and upon waking resisting, and wearing a tampon, it could not in my view lead to any reasonable or genuine belief and in your case it is not a potentially mitigating factor. The facts as they relate to you do not come anywhere near the sort of case where earlier sexual behaviour may have occurred so as to induce a belief.

[13] You will have been told there are four bands of rape offered or identified by the Court in R v AM:[3]

• Band one – 6-8 years;

• Band two – 7-13 years;

• Band three – 12-18 years; and

• Band four – 16-20 years.

[14] The only contest from counsel’s submissions is, that the Crown says you fall into Band two and Mr Snell, on behalf of Mr Tutu, says it is Band one. Band one is where there are no aggravating features present or are only present to a limited extent. I do not think Band one is appropriate for offending in your case. Where there are one or more culpability factors present, a higher starting point is required. Here, the vulnerability of the complainant, being asleep and quite incapable of resisting through her physical condition, is one such factor. The bands of course overlap. I think that Mr Tutu’s sexual violation crimes fall either into the upper level of Band one or towards the lower level of Band two. So there is really not a lot of difference between the submissions of competing counsel.

[15] Of course, Mr Carter’s crime is attempted rape so any starting point is adjusted accordingly. All cases are different and the Court of Appeal has resisted and not given any guidelines or tariff judgments for attempted rape.

[16] I have looked at somewhat similar cases to that of Mr Tutu, which include R v Burrell,[4] where a victim awoke to find an appellant having sexual intercourse with her and it involved other indignities. She was vulnerable and the sentencing judge placed the offending at the upper level of Band one and took a starting point of eight years. There are other examples of R v Duncan and R v Swan[5] where seven year starting points were taken. I add that I am still talking about the starting point in respect of Mr Tutu and will come later to the starting point in respect of Mr Carter.

[17] In respect of you, Mr Tutu, because the scale of offending involved both rape and penile penetration, I think a proper starting point is eight years’ imprisonment. Cumulative sentences are not warranted for the two separate crimes because they form part of the one episode and the starting point is fixed to reflect your total culpability. As I have said, I will come to the starting point in respect of Mr Carter shortly.

[18] Your personal mitigating factors Mr Tutu is that you are aged 24, have family commitments, young children, and sustained serious injuries in a car accident in

2007, although it is said that you do not have ongoing physical health problems. Balanced against those matters, are your past 16 criminal convictions, including those for assault of females. I have said I cannot regard as an aggravating factor the assault that occurred later in 2010, but I think your past criminal history simply balances out the mitigating personal matters.

[19] Your separate assault on the complainant by head butting her occurred at quite an earlier time on that day and is unrelated to the sexual offending, although I have no doubt, however, that it ultimately led the complainant to entertain some fears of you. This requires a separate discrete sentence because it is distinct offending and not associated violence or violence associated with the rape. In terms of the Sentencing Act 2002 a cumulative sentence is required. It is fixed on the basis of viewing the totality of the sentence in the end not being outside the permissible range based upon the totality principle.

[20] So to summarise, from a starting point of eight years’ imprisonment on the charge of rape, there being no deduction for personal mitigating features, they being balanced by aggravating features, you are sentenced to eight years’ imprisonment. On the charge of sexual violation by unlawful sexual connection you are sentenced to six years’ imprisonment. Those terms are concurrent. On the charge of male assaulting a female you are sentenced to six months’ imprisonment. This is cumulative upon the sentences imposed in respect of the sexual violation charges.

[21] You may stand down, thank you Mr Tutu.

[22] I now turn to the appropriate sentence for you, Mr Carter. As I have said the Court of Appeal has not delivered any tariff judgments or provided bands for sentencing for attempted sexual violation. That is because the offending is so diverse it can take all manner of forms. So a sentencing judge has to look at all the surrounding circumstances. The cases that I have looked at as examples for sentencing for attempted sexual violation or of assault with intent to commit sexual

violation, include R v Hassan[6] where an accused’s intention to rape was defeated only because of the forceful resistance of the victim. There a sentence of six years’ imprisonment was imposed. In R v Keen,[7] there was a guilty plea to assault with intent to commit sexual violation. There the Court of Appeal said a starting point of four years’ imprisonment was too low and that a conservative starting point was six years’ imprisonment. Thirdly, in R v Falafoa[8] the Court of Appeal upheld a sentence of four years’ imprisonment as being entirely appropriate.

[23] In your case I was initially inclined to fix a starting point of six years’ imprisonment, but given the Crown’s position I fix it at five years. Whilst your offending did not involve additional violence as was present in R v Hassan, it is aggravated by the extreme vulnerability of the victim being asleep to your knowledge, and being present in your home, where she was entitled to expect protection. It seems that in recent times you have been able to act responsibly towards others and I take into account one reference, in particular, that has been presented. But it seems that on this occasion alcohol diminished your will, affected your judgement and certainly affected your sexual performance. But you had clearly gone some considerable distance to effect your intention to sexually violate this woman. The only thing that prevented you from committing the full offence of rape was your temporary impotence and, upon her becoming conscious, her resistance. So that vulnerability and the closeness that you came to committing the primary offence, requires a stern or significant sentence.

[24] Your personal history, given your previous convictions and those of violence against women, might be seen to be aggravating features. You have 48 previous convictions but there have been no significant convictions against women since

1995. Because of that I do not propose to uplift your sentence from the starting point of five years. But the mitigating personal factors are balanced out by your criminal history. You do not show insight or remorse. That is not an aggravating matter, but there is no basis upon which I can find any mitigating features for your insight. You are aged 49, a patched member of the Mongrel Mob and in good health. You have a

largely grown up family but a history of harmful alcohol abuse and you are assessed by the probation officer of having a moderate to high risk of re-offending. I do not think there is anything in your history of personal background that can be said to justify any mitigation from the original starting point.

[25] Accordingly, on the charge of attempted sexual violation you are sentenced to five years’ imprisonment.

[26] Stand down.

ADDENDUM:

[27] Mr Carter, the probation officer has asked that your current sentence of community work be cancelled. That was a sentence imposed for disorderly behaviour and obstructing the police imposed on 25 January 2010. Given your sentence of imprisonment for this crime, your sentence of community work is

_cancelled.

_{J W Gendall J}

Solicitors:

Crown Solicitor, Napier

A J S Snell, Hastings for Prisoner Tutu

Bate Hallett, Hastings for Prisoner Carter

---

[1] R v Tutu & Carter Notes of Evidence HC Napier CRI-2010-041-163, 6 December 2010

[2] R v AM [2010] NZCA 114

[3] At [90].
[4] _{R v Burrell [2010] NZCA 426.}
[5] R v Duncan HC Whangarei CRI 2009-088-01102, 8 October 2010; R v Swan HC Christchurch CRI 2010-009-833559, 26 May 2010.

[6] _{R v Hassan [1999] 1 NZLR 14 (CA).}
[7] _{R v Keen [2010] NZCA 112.}
[8] R v Falafoa CA96/02, 15 July 2003.