R v Abdi aka Farah [2012] NZHC 3134 (22 November 2012)

Last Updated: 10 December 2012

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-020026 [2012] NZHC 3134

THE QUEEN

v

ABDINOR ABDI

(ALSO KNOWN AS CANADA FARAH)

Hearing: 22 November 2012

Counsel: S N B Wimsett and M R Walker for the Crown

P J Kaye for the Prisoner

Judgment: 22 November 2012

_{SENTENCE OF DUFFY J}

Counsel: P J Kaye P O Box 941 Shortland Street Auckland 1140 for the Prisoner

Solicitors: Meredith Connell P O Box 2213 Shortland Street Auckland 1140 (DX CP24063) for the Crown

R v ABDI HC AK CRI-2011-004-020026 [22 November 2012]

[1] First, Mr Abdi, I am required to give you a first strike warning and will now do so.

[2] If you are convicted of any serious violent offence, except a murder, committed after you receive the first warning, you will receive a final warning. In addition, if the judge imposes a sentence of imprisonment for that offence, other than life imprisonment for manslaughter, or preventive detention, then you will serve that sentence without parole or early release.

[3] If you are convicted of a murder committed after you receive the first warning, you will be sentenced to imprisonment for life. You must serve the life sentence without parole, unless it would be manifestly unjust to do so. If you receive a life sentence without parole, you will not be released from prison. If serving the sentence without parole would be manifestly unjust, the judge must specify the minimum term of imprisonment you will serve.

[4] I now turn to deal with the sentencing.

Offences

[5] Mr Abdi, you were found guilty of the following charges by a jury:

(i) One charge of abduction for the purposes of sexual connection on 4 June 2011;

(ii) One charge of rape on 4 June 2011;

(iii) Three charges of party to rape on 4 June 2011; and

(iv) One charge of threatening to kill on 4 June 2011.

[6] Accordingly, convictions on these charges have been entered against you.

Facts

[8] I am satisfied from the evidence heard at the trial and the verdicts of the jury that the background of the offending is as follows:

[9] At approximately 10:30 pm on 4 June 2011, the victim was at the Twenty Four Seven Bar in Auckland. In the bar, she met a group of dark-skinned African males, one of whom had two gold front teeth. She described these men as being from Africa. You, Mr Abdi, were one of the group, being the man with the two gold front teeth.

[10] These men talked to the victim and played pool with her. They invited her outside to look for her friends, one of whom was called Betty. The victim left the bar, crossed Karangahape Road and was followed by some of the African men from the bar.

Abduction charge

[11] The men walked the victim towards a vehicle that was parked close to the bar and forced her into the vehicle. One of them was you, Mr Abdi. You were seated in the front passenger seat. The victim told the men that she wanted to go and that she did not want to be in the vehicle with them. She was ignored. She was driven to a park out of the central city area. When the vehicle was in the park, she was allowed to get out of it. She tried to run away from the men; she screamed but no one came to assist her.

[12] She was then forced back into the vehicle and taken to an unknown address, which she describes as being a garage. In the garage, she was taken to a curtained- off area where there was a bed. Her clothes were removed by one of the men who had been in the vehicle. She was held down by another man and forced to perform oral sex. She was then raped by two men.

[13] You were the third man to rape her. After raping her, you threatened her. You told her that she must leave the area where the bed was, go out to where the other men were and dance naked in front of them. She did not want to do this, but you said, “If you don’t, you won’t get out of here alive. You will die”. The threat caused the victim to get up and dance naked in front of a group of men, some of whom had already raped her. You and another unknown male then led the victim back to the curtained-off area where she was raped by another man.

[14] Throughout the sexual assaults on the victim, she tried to fight off the offenders, but she became exhausted and gave up, allowing the acts of rape to take place.

Victim impact statement

[15] You have heard the victim impact report read out today.

[16] Clearly, the offences have seriously affected the victim. She has expressed her fear of going out and her inability to sleep at night. She now sleeps during the day. She has attempted to reduce her attractiveness to men, in order to make herself safe. She can no longer enjoy the activities she used to. Now when she goes past certain buildings, she starts crying and getting tense, and her hands shake. She has lost her trust in people, particularly men. She has become snappy and grumpy with her friends because she says she always feels unsafe and scared. The stress of the trial has set her back in her studies.

[17] She feels angry and upset at the offenders. She states that you need to get help in order that you do not repeat what has occurred.

[18] Her fear of going out at night has affected her ability to think about getting employment, as she used to work night shifts at a supermarket. She requires ongoing counselling, which is at some financial cost to her, as she is required to pay a surcharge for each session.

Personal circumstances

Prior Convictions

[19] In terms of your personal circumstances, Mr Abdi, you have 12 previous convictions, none of which are particularly relevant to the present case.

Pre-Sentence Report

[20] The pre-sentence report for you shows, in my view, that you have no insight into the seriousness and gravity of your offending; that you do not understand the enormity of the offending as viewed by the community in which you now live.

[21] You are 29 years old. You have lived in New Zealand now for 16 years and you consider yourself a New Zealander. I have difficulty reconciling the idea that you have lived in New Zealand for 16 years with your statement to the pre-sentence report writer that you are the father of four children, all of whom live in Somalia with your wife. You say you have been supporting your family in Somalia with income earned here.

[22] You have expressed annoyance to the pre-sentence report writer that you have been charged with these offences. You have suggested that the victim has complained to the Police because she was looking for a pay-out. You have implied that you have been charged because of the colour of your skin. You have made statements in the pre-sentence report that clearly suggest to me that you are not remorseful at all about the offending and that you harbour some resentment against the victim for her role in the prosecution. Whilst you have said that you feel sorry for her, I do not accept that.

[23] You were identified by the pre-sentence report writer as having a propensity for violence and offending-related sexual arousal. You maintain your innocence, despite DNA evidence of your semen being found on the victim’s underwear. You appear unmotivated and unwilling to address any offending-related factors. Instead, you attempt to avoid responsibility by saying you are being persecuted because of

your race. Nothing could be further from the truth, Mr Abdi. Your attitude towards the victim and your nonchalance in terms of the harm the victim suffered and the lack of victim empathy are said to aggravate your risk of harm to others. I agree with those comments. You are assessed as being at a high likelihood of re-offending.

Purposes and principles of sentencing

[24] In sentencing you today, I must have regard to the purposes and principles of sentencing.

Relevant purposes of sentencing (s 7, Sentencing Act 2002)

[25] The relevant purposes of sentencing here are:

(i) To hold you accountable for harm done to the victim and the community (s 7(1)(a));

(ii) To ensure that there is responsibility for, and acknowledgement of, that harm (s 7(1)(b));

(iii) To provide for victims’ interests (s 7(1)(c));

(iv) To denounce your conduct (s 7(1)(e)) and to deter such conduct (s 7(1)(f));

(v) To protect the community (s 7(1)(g)); and

(vi) I should have regard to your rehabilitation and reintegration back into the community (s 7(1)(h)).

Relevant principles of sentencing (s 8, Sentencing Act)

[26] In terms of the relevant principles of sentencing, I should consider:

(i) The gravity of the offending, including the degree of culpability (s 8(a));

(ii) The seriousness of the type of offence (s 8(b));

(iii) Consistency with appropriate sentencing levels (s 8(e)); (iv) The effect of offending on the victim (s 8(f));

(v) I should impose the least restrictive outcome appropriate in the circumstances (s 8(g)); and

(vi) I should also have regard to your personal, family, whanau, community, and cultural background where rehabilitation is a purpose (s 8(i)).

Aggravating and mitigating factors (s 9, Sentencing Act)

Aggravating factors of the offending

[27] In terms of aggravating and mitigating factors in the Sentencing Act, I

consider that here, there are aggravating factors of the offending, which are: (i) The actual or threatened violence (s 9(1)(a)); and

(ii) The harm that has been done to the victim (s 9(1)(d)).

Mitigating factors of the offending

[28] There are no mitigating factors of the offending.

Aggravating factors relating to the offender

[29] In terms of aggravating factors relating to you, there are the prior convictions, but I am not taking those into account.

Submissions

Crown submissions

[30] The Crown has submitted that a starting point of 17 to 18 years’ imprisonment is appropriate for you, Mr Abdi. The Crown accepts there should not be any uplift for previous convictions; and the Crown has requested a minimum period of imprisonment of 50 per cent of the sentence.

Mr Abdi’s submissions

[31] Your counsel, Mr Abdi, takes no issue with the Crown’s submissions, which is a realistic stance to take. The aggravating features as highlighted by the Crown are accepted. It is submitted that if the matter falls within band four of the tariff decision of R v AM [2010] NZCA 114, [2010] 2 NZLR 750, a starting point of 16 years’ imprisonment would be appropriate. It is also submitted that any issue regarding minimum non-parole is best handled by the Parole Board at the appropriate time.

Tariff Case: R v AM

[32] Offending such as this is subject to the tariff guidelines in the Court of Appeal’s decision in R v AM. This judgment applies to all rape sentencing taking place after 31 March 2010 (at [125]). In R v AM, the Court of Appeal recognised that the new guidelines would alter previous sentencing levels (at [33]):

We anticipate that under the reformulated guidelines, some offenders (particularly those whose offending was not characterised by aggravating features) may receive lesser sentences than would be imposed under the current practice, while others will receive longer sentences. That is an intended effect because the objective is to ensure properly graduated sentencing and avoid the current clustering of sentences around the eight- year mark. Overall sentencing levels should not change appreciably.

[33] Accordingly, it is not useful to compare the present offending with cases that predate R v AM. To do so defeats the purpose of the guideline judgment, and could result in a sentence that is out of step with that guideline judgment. Pre-R v AM

cases are only be used by reference to the guidelines set out by the Court of Appeal, rather than on a purely comparative basis (at [91]).

[34] In R v AM, the Court of Appeal sets out four bands of offending for rape and analogous sexual offending, and three bands for other types of unlawful sexual connection. For each band, the Court describes the features of the offending which might be present at the lower and higher end of the band.

[35] Rape within band one will attract a sentence of six to eight years' imprisonment where there aggravating features are either not present, or present to a limited extent only.

[36] Rape in band two will attract a sentence of between seven to 13 years’ imprisonment. This will be where there are two or three aggravating features present: a moderate scale of offending, levels of violence and premeditation covering offending involving a vulnerable victim, or an offender acting in concert with others, or some additional violence.

[37] Rape in band three attracts a sentence of between 12 to 18 years’ imprisonment. The aggravating features will be at a serious level. The offending involves two or more of the factors increasing culpability to a high degree where there is a particularly vulnerable victim and serious additional violence, or more than three factors to a moderate degree. This includes particularly cruel, callous, or violent single episodes of offending involving rape.

[38] Rape in band four attracts a sentence of between 16 to 20 years’ imprisonment Aggravating features are of a similar type to the higher levels of band three, but involve multiple offending over a considerable period of time, rather than a single instance of rape. Repeated rapes of one or more family members over a period of years, especially when involving children and teenagers, will attract a starting point at the higher end of band four. Gang or pack rape will also likely fall within band four.

[39] The Court of Appeal identified the following aggravating features:

(i) Planning and premeditation, which I consider is a relevant feature here, to some extent. This is because there was a considerable period of time when the victim was first spotted leaving the bar in Karangahape Road, to her being forced into a vehicle. She made it clear she did not want to be there. There was plenty of opportunity to back out of what was planned but that did not transpire. She was, instead, detained until, on her evidence, the next morning.

(ii) Another aggravating feature is violence, detention and home invasion. This is relevant as regards the abduction and then the continued detention of the victim. Violence is inherent in the offence of rape, but “more than mild” associated violence will increase culpability. Violence can include physical threats and presence or use of weapons. Abduction may also increase culpability; and the seriousness increases as the length of detention increases.

(iii) Another aggravating feature is the vulnerability of the victim.

I consider that here, there is some minimal vulnerability over and above that which would normally follow in a situation where a woman finds herself with a group of men intent on raping her. Here, the victim, who was 44 years, was at the time living in a night shelter. This indicates to me that there was some vulnerability in her life at that time; so, I do consider there is some minimal vulnerability here, over and above that inherent in being the victim of rape, that I should take into account.

(iv) Another aggravating feature is harm to the victim. Whilst the victim impact report shows that there has been a serious impact on the victim in this case, the harm that she suffered was, in my view, nothing other than what is inherent in the offending of rape.

(v) Another aggravating feature recognised in R v AM is multiple offenders; and here, this is relevant. The Court of Appeal noted gang or pack rape may fall within the highest rape band, despite the absence of other aggravating factors. The role and extent of participation by each offender will be relevant in assessing individual culpability.

(vi) There is the scale of offending. This is relevant to the extent that the victim was detained from Saturday evening until Sunday morning and over this time period subjected to multiple rapes.

(vii) In terms of degree of violation, which is an aggravating feature, the rapes were not attended by other physical violence, although the victim felt threatened and was, therefore, compliant, which may have removed the likelihood of further violence.

[40] None of the other aggravating features identified in R v AM seem to me to be relevant.

Relevant cases

[41] Although R v AM states that the tariffs set in previous cases are less relevant now, the Court did cite R v Koroheke CA189/01, 28 November 2001 as an example of a case that should be seen at the lower end of band four. This case involved a group of offenders, who were gang members, who went to a house where the victim and an older woman lived. By a ruse, they tricked the older woman to leave so that the young victim would be alone. The offenders then forced the victim into a car and drove to the home of one of the offenders.

[42] At the home, the victim was forced into a double garage. She was subjected to a number of degrading acts. She was forced to masturbate herself in front of the gang members. There were multiple sexual violations, which lasted a period of two

and a half hours. She was forced to perform oral sex on four offenders, and her vagina was penetrated by a hammer handle. There were also two attempts at penile penetration. At some point during the attack, the offenders stood around the victim chanting “seig heil”, barked like dogs while they watched, they spat on her body, and abused her verbally.

[43] The Court considered that an end sentence of 16 years’ imprisonment was appropriate. The Court of Appeal in R v AM has confirmed this case as representing a classic case for band four offending, stating at [111] that:

In Koroheke, the planned abduction, high degree of degradation, youth of the complainant, and the active involvement of multiple offenders makes the offending both brutal and particularly humiliating and degrading.

[44] An older case that related to a pack rape was R v Misitea [1987] 2 NZLR 257 (CA). Although the sentencing levels are not comparable, the Court’s attitude towards pack rape can be discerned from some of its comments.

[45] None of the men who were convicted were proven to have had sexual connection with the woman. They merely aided and encouraged. In imposing a sentence of 10 years’ imprisonment, the Court of Appeal observed that:

Each man who joins in the gang activity by any form of encouragement or help contributes to the ongoing wave of crimes. Each must know this very well. It is a process of group stimulation. There is mutual encouragement to reject civilised standards of human decency. The victim and community are treated with arrogant contempt.

Analysis

[46] Mr Abdi, in terms of applying the relevant legal principles to this offending, I consider the lead offence is the rape charge. I consider that there are enough aggravating features, in addition to the fact that this was a pack rape, to place this offending in band four of R v AM. The main aggravating features of this offending are:

(i) The premeditated and forced abduction and continued detention of the victim;

(ii) The prolonged nature of the offending;

(iii) The multiple violations. Even if you were merely a party to some of the rapes, as the Court stated in Misitea, it is the group encouragement of the crime that makes the offending particularly serious;

(iv) There was a threat to kill the victim if she did not comply with your wishes; and

(v) There was the extra indignity and humiliation the victim had to suffer when being forced to dance naked in front of men who either had or were about to rape her.

[47] However, when compared with Koroheke, I consider the circumstances here to be equal or less serious. Koroheke involved actual gang members. There was penetration by a hammer, and the indignity of being spat on and having violent barking, which would have aggravated the offending. The age disparity of the victim there was also greater, as was the vulnerability. So, if Koroheke is considered to be at the lower end of band four, with an end sentence of 16 years’ imprisonment being appropriate, I consider that your offending, Mr Abdi, ought to be placed at the low end of band four. I consider, therefore, that the starting point should be one of 16 years’ imprisonment. As the totality of this offending has been taken into account in choosing a starting point, there will be no uplift for the other offending.

[48] As to the personal features, since you, Mr Abdi, have no relevant previous convictions, there will be no uplift for your criminal history.

[49] There can be no discounts in this case. This means there are no adjustments,

which leaves a final sentence of 16 years’ imprisonment.

Minimum period of imprisonment: Sentencing Act, s 86

[50] I now turn to consider whether or not there should be a minimum period of imprisonment.

[51] If an offender receives a determinate sentence of imprisonment of more than two years, the court may order that the offender serve a minimum period of imprisonment, which is a minimum period that is longer than the one-third of the length of the sentence, which is the default period under the Parole Act 2002.

[52] The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient either to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or protect the community.

[53] A minimum period of imprisonment must not exceed two-thirds of the full term of the sentence.

[54] The purpose of the imposition of minimum periods of imprisonment has been stated in see R v Brown [2002] 3 NZLR 670 (CA) at [28]:

[Section] 86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk. It enables the courts to give a degree of reality to the sentence and the outcome.

[55] The central consideration is the offender’s level of culpability, which is increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences: see R v Brown at [32]. The sentencing considerations in ss 7, 8, and 9, including the circumstances of the offender, are relevant in fixing a minimum period of imprisonment: see R v Brown at [27]; R v Nguyen [2009] NZCA 239; R v Gordon [2009] NZCA 145; R v Walsh (2005) 21

CRNZ 946 (CA).

Analysis

[56] There is no doubt that offending that can be placed in the upper end of band three or the lower end of band four of R v AM is inherently brutal and callous. The question is whether the one-third default minimum is insufficient to hold the offender accountable for the harm done, denounce the conduct, deter the offender or protect the community.

[57] On the basis of what you have revealed of yourself in the pre-sentence report, I consider that the one-third minimum is not enough. I also consider that the gravity of the offending is such that a one-third minimum parole period will not be enough.

[58] You, Mr Abdi, do not appear to have any insight into the offending. As I said earlier, you have attempted to blame the victim for what occurred. You seem to be nonchalant about the harm caused to the victim. These attitudes are dangerous for society and indicate that you are not likely to accept responsibility for what you have done and to not re-offend in the future, if released after only serving one-third of the sentence.

[59] I consider that a 50 per cent minimum period of imprisonment should be imposed. This amounts to a minimum period of eight years’ imprisonment.

Result

[60] Mr Abdi, would you please stand.

[61] On the lead offence of rape, you are sentenced to 16 years’ imprisonment, with a minimum period of imprisonment of eight years. On the three offences of being a party to rape, you are sentenced to 12 years’ imprisonment for each such offence. On the offence of abduction, you are sentenced to 10 years’ imprisonment. On the offence of threatening to kill, you are sentenced to five years’ imprisonment. All sentences are to be served concurrently, which means that the total length of the sentence will be 16 years’ imprisonment, with the minimum period of eight years’ imprisonment.

[62] You may stand down.

Duffy J