R v Pahi [2012] NZHC 1727 (17 July 2012)

Last Updated: 21 August 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-068-000317 [2012] NZHC 1727

THE QUEEN

v

HENDRIX CHARLES JOHN PAHI

Hearing: 17 July 2012

Counsel: S Cameron for Crown

K Tustin for Prisoner

Judgment: 17 July 2012

_{SENTENCING REMARKS OF LANG J}

R V HENDRIX CHARLES JOHN PAHI HC HAM CRI-2011-068-000317 [17 July 2012]

[1] Mr Pahi, you appear for sentence today having pleaded guilty on 15 May

2012 to 32 charges contained in an indictment presented by the Crown.1

[2] The 32 charges to which you have entered pleas of guilty, and the maximum sentences in respect of each of them, are as follows:

_{Count No. Charge Maximum penalty}

_{1, 10, 15, 18, 21, 27 Sexual violation by rape 20 years imprisonment}

_{26 Sexual violation by unlawful sexual connection 10 years imprisonment}

_{2, 13, 19, 30 Kidnapping 14 years imprisonment}

_{8 Assault with intent to commit sexual violation 10 years imprisonment}

_{3, 6, 16, 23, 24, 25 Injuring with intent to injure 5 years imprisonment}

_{12, 14, 22 Assault with intent to injure 3 years imprisonment}

4, 5, 7, 11, 17, 20, 28,

_{29, 31}

Male assaults female 2 years imprisonment

_{33 Threatening to kill 7 years imprisonment}

[3] Your guilty pleas followed a sentence indication given by Toogood J at your request.2 In the sentencing indication, the Judge advised you of the range that he felt the starting point for your offending would fit within and, also, of the various discounts that could be given to reflect your age and guilty pleas. He also indicated that a minimum term of imprisonment would be required.

[4] In entering your pleas of guilty after the Judge gave the sentence indication, you expressly accepted the correctness of the various ranges and other factors the Judge identified. It falls to me, however, to make a final decision regarding the actual sentence to be imposed. In doing so, I adopt the reasoning of Toogood J. To

_{that extent his remarks must be read as forming part of these sentencing remarks.}

1 During the hearing I discharged Mr Pahi on Count 9, in respect of which the Crown had offered no evidence.

2 R v Pahi HC Hamilton CRI-2011-019-6849, 15 May 2012.

Background

[5] Your offending occurred against three victims, all of whom were your partners for various periods of time. You lived with the first complainant for approximately 12 months during 2008 and 2009. You lived with the second complainant for a period of six months between January and June 2010. At that time, she was just 16 years of age and you were 20 years of age. You lived with the third complainant for a period of approximately three months between May and July

2011.

[6] It is not necessary for present purposes to traverse in detail the individual crimes that you committed against each of your three partners. Rather, it is sufficient to outline the hallmarks of your offending, because it was similar in relation to each of the complainants. I take these, as did Toogood J, from the submissions filed by the Crown prior to the sentence indication hearing, Toogood J accepted they properly reflected the gravity of your offending as disclosed by the summary of facts, with which you take no issue.

[7] The offending in relation to each complainant followed a common pattern. Once the complainant was committed to a relationship with you, and was living with you, you would become violent towards her. You would both verbally and physically abuse the complainant. Often, the pretext for this abusive behaviour was your stated belief that your partner had been unfaithful to you in one way or another.

[8] In each case the relationship was founded on your absolute control of your partner. You achieved your control through physical and psychological aggression and intimidation of her. You demonstrated your power of control over each of the complainants by locking them within the house and refusing to let them leave. This could occur for significant periods of time. This conduct led to the charges of kidnapping.

[9] You directed various forms of physical abuse towards your partners. These included direct blows, such as punches or kicks to various parts of the body. Another feature of your violent offending towards them was that you would apply

strangleholds on them, sometimes to the point where they would be on the point of losing consciousness. You used your hands to do this, and you also used other items to assist in your efforts to strangle your victim. Not surprisingly, your victims lived in a complete state of fear and subjugation whilst they were with you.

[10] This led to various forms of sexual offending including, in each case, the rape of your partner. That obviously occurred without her consent. It generally occurred in situations where you applied actual violence to the person of the complainant. In other occasions, you made threats of violence. These were sufficient to overcome resistance and compel your partner to submit to, or acquiesce in, the various sexual acts that followed.

[11] Your sexual demands were incredibly intrusive on the lifestyle of your partner. You would often demand sex on a daily basis or even sometimes several times a day. Whenever your partner resisted or showed hesitation in complying, you would become physically and verbally abusive towards her. As I have indicated, this was sufficient in most cases to overcome your partner’s resistance and compel her to submit to your demands.

[12] In preparation for sentencing today, I have read victim impact statements prepared by your partners and also, in one case, by the parents of your partner. These demonstrate the massive impact your offending has had on these peoples’ lives. Your offending has caused long lasting emotional effects for all of your victims. It has also created real issues within their wider families. It is going to be a very long time, Mr Pahi, before your victims are going to be able to come to terms with what you did to them. Your offending had long lasting effects that will see them struggling to trust and become trusting of other people. You and you alone must accept responsibility for what you have done to them.

Starting point

[13] Both counsel agree, and agreed at the sentence indication hearing before

Toogood J, that the starting point to be adopted in relation to your offending falls

within the top end of Band 3 identified by the Court of Appeal in R v AM.3 That case is a “tariff” judgment of the Court of Appeal that sets guidelines for starting points to be applied in relation to different forms of sexual offending.

[14] Your offending has several features that places it in that top band. First, it involved multiple complainants. Secondly, it involved different forms of sexual activity including both rape and unlawful sexual connection through digital penetration of one complainant’s vagina. It included various forms of violence, many of which were directly connected with your desire to have sexual relations with your partner. It occurred over a considerable period of time and has had devastating effects, as I have said, for your victims. All of those factors combine to place the offending in the category I have described.

[15] Toogood J indicated that the appropriate range within which to fix a starting point for your offending was between 17 and 19 years imprisonment. Your counsel did not take issue with that.

[16] Given the fact that this was higher than the range suggested at the sentence indication hearing by the Crown, I propose to adopt a starting point at the bottom end of the range suggested by the Judge. I therefore take an overall starting point of

17 years imprisonment to reflect the total culpability of your offending.

Aggravating factors

[17] It is not necessary to uplift that starting point to have regard to factors personal to you. Although you have some previous convictions, they are not relevant for present purposes and the Crown has not suggested otherwise. For that reason I take an end starting point of 17 years imprisonment before applying mitigating

_{factors personal to you.}

3 R v AM [2010] 2 NZLR 750.

[18] You appear for sentence at the age of 22 years. You were between 18 and 20 years of age at the time of this offending. You had an extremely difficult upbringing. You had a loving mother who cared for you and your siblings until you were 12 years of age, when she tragically died. Your father was not a role model for you. He played very little part in family life, and such part as he did play did not assist you in your formative years. Those were marked by alcohol abuse on the part of your father and, also, physical abuse occurring within the family context. You were also exposed regularly to sexual activity by adult males within both your immediate and wider family.

[19] You left school at an early age and, after your mother died, you became itinerant for awhile with a sister. You were then taken under the wing of an older sister, and you lived with her for some period. To your credit, you have been able to hold down jobs on a regular basis. A signal feature of your life, however, has been excessive consumption of alcohol, and I have no hesitation whatsoever in concluding that it is a major contributor to your offending. You have also been involved in the consumption of drugs and, this too, in my view, is a factor that has probably triggered offending.

[20] The most important factor, however, that needs to be addressed is a characteristic that your offending brings to the fore and that is your underlying anger. I have the benefit of a psychological report that has been prepared by an experienced psychologist. This reveals that you do not have any underlying mental disorders, but you do have a significant issue with anger. This probably arises out of what you experienced during your formative years. You have acknowledged this, both to the psychologist and to the probation officer.

[21] You say that relationships with your partners developed normally at first but, after a time, you would become angry with them when you believed they had not been faithful to you. This, no doubt, demonstrates an underlying absence of trust by you in other people. Again, this may be a factor arising out of the environment in

which you lived in your formative years. You say that, once violence began in a relationship, it became normalised behaviour and thereafter went out of control.

[22] The probation report indicates that you have some empathy with your victims and, in fact, you have said that not a day goes by when you do not think of them. On the other hand, you appear to have little insight into your offending. By insight, I mean understanding of why and how your offending occurs and how you can take steps to stop it.

[23] Your underlying issues with anger and lack of trust of other people are factors that are going to take many years to resolve, and they will also require the assistance of professionals if they are to resolve successfully. It is imperative, Mr Pahi, that you address those issues and take whatever steps you can to deal with them or it is inevitable that you will be back here again, perhaps facing even more serious charges in the future.

[24] Toogood J acknowledged that you appear for sentence at a comparatively young age. This means that you are going to perhaps find prison life more difficult than an older person might. The Judge applied a discount of 18 months to reflect this fact, and I propose to adopt the same discount to reflect your age.

[25] The Judge also applied the maximum discount available to reflect your guilty pleas, which came soon after committal and consolidation of all charges within one indictment. He indicated he was prepared to apply a discount of 25 per cent to reflect that factor. I propose to round that factor up to four years to reflect the fact that you have indicated some degree of remorse and indicated that you are prepared to undergo rehabilitative therapy.

[26] This means that I am left with an end sentence of 11 years six months imprisonment to reflect both the totality of your offending and the mitigating factors I have identified.

[27] In any case where the Court imposes a sentence of more than two years imprisonment, it has the power under s 86 of the Sentencing Act 2002 to impose a minimum term of imprisonment. The Court can do this when it considers the normal parole provisions, which would allow you to apply for parole after serving one-third of your sentence, would not be sufficient to reflect several factors. These are the need to hold you accountable for your offending, the need to denounce your conduct and to deter both yourself and others from being tempted to commit similar conduct

in the future.4

[28] The remaining factor under s 86 is the need to protect the community from future offending.5 I see that as being particularly relevant in the present context for two reasons. First, the offending for which you appear for sentence is particularly serious, and once committed it has catastrophic effects for victims and their wider families. Secondly, I have already indicated that you need to take steps to deal with significant underlying issues if you are no longer to present as a risk to the public of

further offending.

[29] The pre-sentence report records that a substantial term of imprisonment will be required to enable intervention to be offered to you to deal with these issues. That factor leads me to conclude that a significant minimum term of imprisonment is required.

[30] The Court has the power to require an offender to serve up to two-thirds of the sentence before being permitted to apply for parole.6 I consider a minimum term of something close to that is required. I therefore propose to impose a minimum

_{term of imprisonment on the rape charges of seven years five months imprisonment.}

4 Sentencing Act 2002, s 86(2)(a) to (c).

[31] On each of the charges of sexual violation by rape you are sentenced to 11 years six months imprisonment and ordered to serve a minimum term of imprisonment of seven years five months.

[32] On the charge of sexual violation by unlawful sexual connection you are sentenced to ten years imprisonment.

[33] On each of the kidnapping charges you are sentenced to four years imprisonment.

[34] On each of the charges of assault with intent to commit sexual violation you are sentenced to three years imprisonment.

[35] On the charges of injuring with intent to injure you are sentenced to two years imprisonment.

[36] On the charge of assault with intent to injure you are sentenced to one year’s

imprisonment.

[37] On each of the charges of male assaults female you are sentenced to one

year’s imprisonment.

[38] On the charge of threatening to kill you are sentences to two years imprisonment.

[39] All of those sentences are to be served concurrently which means you will serve an effective sentence of 11 years six months imprisonment.

_{[40] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

K Tustin, Hamilton