R v Weenink [2012] NZHC 3224 (30 November 2012)

Last Updated: 30 November 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-070-005584 [2012] NZHC 3224

THE QUEEN

v

SAMUEL OWEN WEENINK PAUL MCMASTER DYLAN JOHN O'NEILL

RICHARD JAMES CAMERON MORTON COREY CLINTON OWENS

Hearing: 30 November 2012

Counsel: G Hollister-Jones and J Rhodes for the Crown PG Mabey QC and A Hopkinson for Weenink CG Tuck for McMaster

CR Horsley for O'Neill FCK Wood for Morton AC Balme for Owens

Judgment: 30 November 2012

_{SENTENCING REMARKS OF ASHER J}

Solicitors/Counsel:

Crown Solicitor, DX HP 40041, Tauranga 3141.

Email: [e-mail] and [e-mail] and [e-mail]

PG Mabey QC, DX HP 40075, Tauranga 3141. Email: [e-mail] and [e-mail]

CG Tuck, PO Box 13110, Tauranga 3141. Email: [e-mail]

Adams & Horsley, DX HP 40012, Tauranga 3141. Email: [e-mail]

Davys Burton, DX JP 30001, Rotorua. Email: [e-mail]

_{AC Balme, PO Box 13079, Tauranga 3141. Email: [e-mail]}

R V WEENINK HC ROT CRI-2011-070-005584 [30 November 2012]

[1] Samuel Weenink, Paul McMaster, Dylan O’Neill, Richard Morton and Corey Owens, you appear today for sentence following verdicts of guilty delivered following your trial on rape counts on 19 October 2012. I record that I have already delivered a three strikes warning.

[2] You have all been found guilty on four counts of rape. With the exception of Mr Morton, that has been on the basis that you were guilty as a principal on one of the counts and as a party on the others. You, Mr Morton, have been found guilty of being a party to rape on four counts, but have not been found guilty of rape as a principal as that count was withdrawn.

Facts

[3] I set out briefly the facts. On the Sunday in question the five of you had been exchanging texts and talking about putting a woman on the block. I will refer later to what that means. Three of the five of you knew the complainant. You had contacted the victim and asked her around for a night of drinking and socialising. Some of you had gone to pick her up. She came willingly and on arrival you started drinking. This was at about 8 o’clock on the Sunday evening. Over the next few hours you all drank. The victim consumed a good deal of alcohol and consumed some cannabis. She became drunk.

[4] Sometime around the 10 o’clock mark she went outside on the deck to have a cigarette. There had been no discussion about sex. As she walked back into the room, one of you grabbed her from behind and pulled down her top off exposing her breasts. When she tried to replace her top her arms were pinned behind her and all of her clothes were removed. She was forced onto a couch in the living room. She initially struggled and cried out in protest. She eventually stopped because she was hurting herself by fighting. First you, Mr McMaster, and then the others, with the exception of Mr Morton, took turns in raping her by having vaginal intercourse with her. Some of the rapes took place while she was lying on her back and others when she was on her knees. She was also forced to give oral sex. On one occasion when this was happening and Mr McMaster had his penis in her mouth causing her pain,

she bit down on it. As a result you, Mr McMaster, punched her on the side of her face causing her to be hurt and dazed.

[5] During the course of the evening she was allowed to go to the toilet. After the events she slept through to the early morning and she was taken home.

[6] Ultimately the victim was raped by all of you except for Mr Morton. He, like others of you, had masturbated while the others were having sex, and had ejaculated.

[7] It is clear that at some stage you came up with some lubricant which was used during the rape. At one stage, for 18 or 19 seconds or thereabouts you, Mr Weenink, using your mobile phone tried to film what was going on. No images were recorded but there was a period in which the sound of what was happening was recorded and this was played to the jury. Towards the end of the episode you, with the exception of Mr O’Neill, masturbated over her and ejaculated onto her body and her hair. Mr O’Neill left prior to the end.

[8] It is impossible to estimate precisely the duration of the sexual assaults, but they took place over at least two hours and probably less than three.

[9] I turn to the effects on the victim. As a result of the assaults she had multiple bruises to her chest, her arms and her legs. These included numerous finger bruises consistent with hands holding her with some force. She also suffered vaginal injuries consistent with repeated penetration, and significant petechial haemorrhaging on the roof of her mouth consistent with oral sex.

[10] In the victim impact report the victim has set out the impact on her. She has suffered greatly as a consequence of the rapes. She describes her bruising. She still has broken blood vessels in her cheek from where she was punched, a constant reminder of what happened. She was sore and stiff for many days and simple tasks like going to the toilet and eating were difficult because of the injuries to her genitals and her mouth. Fortunately, none of these injuries were long term and healed as could be expected. She has, however, had to take nine months off work to recover emotionally from the stress of the assault. She has felt ostracised in her community

and felt obliged to move away from Tauranga. In terms of leaving her friends and family, this has been a devastating experience. The emotional harm will stay with her for the rest of her life. She has been diagnosed with post-traumatic stress disorder, anxiety and depression. She says at the end “I will never get over it, but I will move on from it. I just have to remember that not all people are that nasty.”

[11] The statement is devoid of self-pity or vengeful statements against you. It is all the more impressive for that.

[12] The Crown says this is rape offending of the most serious type and warrants being placed in the highest tariff level of 16 to 20 years’ imprisonment. The Crown proposes a starting point of 16 to 17 years’ imprisonment for all of you. It asks me to consider a minimum term of imprisonment and has referred to a term of 50 per cent.

[13] Your counsel disagree. They submit that the matter falls more logically into band three and that a starting point of no more than 15 years’ imprisonment should be chosen. Mr Wood suggests a starting point of 13 to 15 years. They go on to submit that there should be discounts for good character and youth, and they oppose a minimum term.

Approach to sentencing

[14] I do not propose setting out the purposes and principles of sentencing set out in the Sentencing Act 2002, although I bear them very much in mind. I am conscious of the need to denounce this offending and to recognise the immense harm it has done to the victim. I must also bear in mind my obligation to impose the least restrictive outcome appropriate in the circumstances.

[15] It is necessary for me to start the process of deciding the ultimate penalty by assessing the appropriate starting point. By starting point I mean the starting point appropriate for the offending after an assessment of its culpability, but not taking into account any matters personal to the offender.

[16] In fixing that starting point I take into account that the maximum penalty for a single count of rape is 20 years’ imprisonment, and I also take into account the principles that are set down in the guideline judgment of our Court of Appeal by which I am bound, and which all counsel in the course of this sentencing have referred to, the case of R v AM (CA27/2009).1 That case set out offending bands for starting point purposes. It is common ground between counsel, both for the Crown and defence, that this offending falls either within band three or band four, the two most serious bands referred to in R v AM, although there have been some references

on the way to band two.

[17] Band three is a sentencing band for sentences of imprisonment of 12 to 18 years. For that band there must be aggravating features at a serious level involving two or more aggravating factors increasing culpability to a high degree, such as a particularly vulnerable victim or serious additional violence, or more than three factors to a moderate degree. This includes particularly cruel, callous or violent single episodes of offending.

[18] Band four is the most serious band carrying sentences of 16 to 20 years. Here the aggravating features are of a similar type to the higher levels of band three, but will generally involve multiple offending over a considerable period of time rather than a single instance of rape. Repeated rapes of members of a family, particularly where this involves children or teenagers, will usually fall at the higher end of band four.

[19] It is stated in R v AM2 that the fact that a violation involves more than one offender acting together is a factor increasing culpability. It is an indication that the offending will have involved more than a serious degree of harm, and that the injuries sustained by the victim will show that. It is noted in R v AM3 that gang rape may fall within the highest rape band despite the absence of other aggravating factors. Later in discussing rape band four it is noted that gang or pack rape is

_{another situation that is likely to fall within that band.}4 _{The Court of Appeal also}

1 _{R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.}

2 _{At [45].}

3 At [46].

emphasised that what was required always was an evaluation of all the circumstances. There is a need for judgment. A mechanistic approach is not appropriate.5

[20] I have given thought as to how I should approach this sentencing. I must of course sentence you all individually, but in fixing a starting point I have asked whether I should consider you all together. I particularly note Mr Morton’s position. Ultimately although I do not think all the starting points can be the same, I do propose considering the starting point for you all collectively as ultimately it is my conclusion that culpability distinctions between you, while they exist, are not great, and tend to turn on particular idiosyncratic events during the night rather than any difference in mindset and intended actions between any of you.

The starting point

[21] So I turn to the starting point and consider the culpability of your offending. [22] I approach the events as one long incident. It is pointless to try and separate

the particular acts of violation, although their scale and duration is obviously of importance, and I will say a bit more about that shortly. It is equally, save for Mr Morton, not sensible to distinguish for sentencing purposes between the counts on which you are a principal and the counts on which you are a party. The general facts are clear. You acted in concert. You supported each other throughout. You each did or would have done if you could, the same sort of things to the victim with the exception of the punch.

[23] Certain aspects of the offending are clear. The forcing of the victim to submit to sexual intercourse, the fact of multiple acts of penile penetration of the vagina and mouth and the level of injury inflicted. I will come back to these factors.

[24] Others, however, are more controversial in particular the issue of premeditation. The Crown puts forward premeditation as an aggravating factor. It

has the onus of proving such an aggravating factor beyond reasonable doubt.6 The question is, when you invited the victim over, did you plan to rape her? When you said you wanted to put a woman on the block, did you have rape in mind as distinct from you all having consensual sex with one woman?

[25] A number of witnesses have said what they thought “on the block” meant and they have given varying explanations. I was left unsatisfied that “on the block” meant anything other than one woman having sex with a number of men. I have not been satisfied that it has a meaning involving the connotation of force. So I do not consider that when you were talking about putting a woman on the block you were talking about deliberately raping her.

[26] There are also other factors which cast doubt on the Crown submission that this was premeditated. As your counsel have pointed out to me, there was another young woman who came to your place before the victim came. She stayed for a while and then she left of her own accord. She was a person who you intended to put on the block, but you allowed her to leave and made no attempt to restrain her or force yourselves on her. That is not consistent with you having an intention of raping someone. Nor is the fact that, as I note, there were other friends present at times during the evening, including a girlfriend, although they had left before the raping began.

[27] It is my assessment of the situation, having presided over your trial, that the five of you were unlikely to have decided on a clear criminal course of conduct in the cold light of that Sunday. It is more likely in my view that the intention to force yourselves on the victim was more spontaneous.

[28] It is somewhat inconsistent with this view that I have reached that you ultimately attacked the victim without asking her whether she would agree or not to sex. There must have been some consensus between you prior to you pulling down her blouse and then holding her down and raping her, that you would force her. You acted in concert. It could not have been utterly spontaneous in the sense of the intention forming that second, or at least that is unlikely.

[29] However, I am prepared to give you the benefit of the doubt and assume that as the Sunday night progressed, and during the time when she was out on the deck having a cigarette or as she was coming back in, you decided that you would just grab her and have sex without more ado. So I do not accept that there was any premeditation in the sense of any long term planning, and if there was any common plan at all it evolved in the minutes, or possibly seconds, before the rape began.

[30] So where does your culpability lie? In terms of assessing culpability many of the culpability assessment factors, as they are called, set out in R v AM do not apply. I have already dealt with planning and premeditation, and I note that there was no particular vulnerability of the victim, no physical harm more than what was inherent in multiple rapes with multiple offenders, and no breach of trust in the sense of a breach of a familial or particular trust relationship.

[31] In terms of harm to the victim, I have already described it. I agree with the assessment of the Crown in written submissions picked up by your defence counsel that in terms of the scale of the offending, the harm to the victim was at the lesser end. But I do not overlook Mr Hollister-Jones’ point for the Crown that that must be seen in comparative terms in terms of this being a serious, prolonged and harmful episode of penetration.

[32] There are two aggravating factors that undoubtedly exist. They are the scale of the offending, being multiple violations over a period of at least two hours and the fact that there were multiple offenders, the five of you. Now there is some overlap between those but that is inevitable. It is possible to look at it in another way and say that there were three aggravating factors and include the harm to the victim, but I am inclined to accept the defence submission that that does really get us into areas of overlap.

[33] So in terms of the bands, there were two factors increasing culpability to a high degree, they being multiple offenders and scale of offending. Now this could place the offending in terms of rape band four which turns not so much on the number of culpability assessment factors, but rather the degree of culpability of a particular factor or factors. For instance, gross violence or gross breach of trust.

[34] For assistance in fixing the starting point I turn to some multiple offender rape cases that have been put to me and which do provide some helpful guidance. The first is the case of R v Koroheke7 where five males in a gang abducted a 15 year old female from her house after luring an older woman away from the home on a pretext. She was then taken to another place and violated over a two and a half hour period. While there was no penile penetration, the attempts at penile penetration being unsuccessful, there were other forms of penetration including penetration with a hammer handle for a long period. She was spat on and verbally abused by barking

and “Sieg Heil”s and other indignities. This was placed by the Court of Appeal in R v AM as an example of rape at the lower end of rape band four. In my view the culpability of the defendants in that case was clearly greater than in your case. There is not the element of forced abduction in this case, nor the particular horror of forced penetration by an object, or particular and deliberate acts of humiliation of the seriousness of those in R v Koroheke.

[35] There are also the two recent cases that have been referred to of R v Abdi8 and R v Bashir.9 These cases concerned a group rape by four men. They abducted the victim by force. She was required to get into a vehicle and first taken to a park and then a garage. She was raped on multiple occasions and forced to perform oral sex.

She was required to dance naked in front of the men who had raped her, and when she protested she was told “if you don’t you won’t get out of here alive, you will die”.

[36] This case is particularly relevant as it is a case that came after the R v AM guideline judgment. The Judge noted that there was clear planning and premeditation and the victim was forcefully detained through the night. There was also the extra humiliation she had suffered in being forced to dance naked and the threat to kill.

[37] Mr Abdi, who was found guilty of all aspects of the offending, including the abduction, the threat to kill and the forcing to dance, was given a starting point of 16

_{years. Mr Bashir, who was not involved in those particular aggravating features and}

7 _{R v Koroheke CA189/01, 28 November 2011.}

8 _{R v Abdi [2012] NZHC 3134.}

9 R v Bashir [2012] NZHC 3135.

therefore whose position was closer to yours, was given a starting point of 15 years’ imprisonment. But I note in relation to Mr Bashir the Judge had noted that he had been party to the continuing detention and watching the victim dance naked. I regard your offending as less serious than that of Mr Abdi.

[38] I note also another case R v Castles10 where a brutal single act of sexual violation by seven young men of a another student with a broom handle was placed at the low to middle of band two by the Court of Appeal in R v AM.

[39] So having considered those comparable cases I return to my assessment of your culpability. In my assessment this case does not fall into band four, but rather in the middle of rape band three featuring as it does the two seriously aggravating factors to a high degree. There was the gross indignity of five men being involved, and the scale of serious physical and emotional harm caused to the victim by over two hours of penetration in various ways. I consider that an appropriate general starting point for you is 15 years’ imprisonment, which I note is only a year below the 16 to 20 year band for rape band four, and in the middle of band three.

[40] As I have said in terms of your intention and your intended involvement, I regard you all as equal. In terms of your actual involvement, I note that you Mr O’Neill went home earlier than the others, a point emphasised by your counsel. But you were there for most of the events and you were there when there was masturbation and ejaculation beside her and I do not consider that there is a proper basis to differentiate your culpability from that of the others.

[41] However, there are two features in respect of two of you that I cannot ignore in reaching starting points.

Mr Morton

[42] First in relation to you Mr Morton. You did not have actual sexual intercourse with the victim because you had masturbated and ejaculated and you

_{were unable to. You therefore did not contribute to the physical damage to the}

10 R v Castles HC Napier T14/01, 19 March 2002.

victim in that respect, but you were very much a part of all the events and carried out other acts of support and encouragement, and you admitted to penile penetration of the victim’s mouth. But I do accept that there is this point of difference in terms of no penile penetration of her vagina. As your lawyer has pointed out, being involved as a party only is noted in R v AM as being able to be seen as relevant in assessing

culpability.11

[43] I am mindful of the observation of the Court of Appeal in R v Misitea12 in relation to parties, that in a major gang rape episode, the difference in culpability between parties and non-parties cannot be great. The Court of Appeal noted that in such a situation there is a process of group stimulation. I am also mindful of the recent Court of Appeal decision of Solicitor-General v Iti,13 where in the case of a woman helping her male companion to rape the victim, the Court agreed with the Crown submission that 15 per cent was the maximum reduction that could be expected. Mr Morton, your involvement was greater than that in Solicitor-General v Iti given your full involvement in events over a long period and your participation in all other actions including oral sex.

[44] However, it seems to me that a lower starting point should follow for you and

I fix a starting point for you at 13 and a half years’ imprisonment.

Mr McMaster

[45] Then there is your position Mr McMaster. You committed an act of violence against the victim that went beyond that which was inherent in the sexual acts. You punched her with sufficient force that she was still showing redness in her cheek bone area days later. The victim said that the punch was in response to her biting your penis and I therefore do treat it as a spontaneous reactive measure rather than an act of deliberate violence or cruelty on your part. Nevertheless, I do consider that some small uplift is warranted to reflect the culpability of a violent act causing harm

_{to a defenceless woman, the catalyst being your sexual violation of her.}

11 _{At [45].}

12 _{R v Misitea [1987] 2 NZLR 257 (CA) at 267.}

13 _{Solicitor-General v Iti [2012] NZCA 27.}

[46] Your starting point will be uplifted to 15 years and three months’

imprisonment.

Personal factors

[47] I now turn to personal factors. I refer first to your relative youth. At the time of offending Mr Weenink you were 20 years old; Mr McMaster, 21 years old; Mr O’Neill, 21 years old; Mr Morton, 21 years old; and Mr Owens, 20 years old. The Court of Appeal has observed that discounts for youth can be given past the age of 18.14

[48] I am going to apply a discount for youth in this case and I am going to apply it to you across the board despite the variations in your age. This is not only because you were all relatively young at the time, but also because your offending showed an almost absurd lack of comprehension of the terrible act that you were committing. The five of you had an immature sexual fantasy. You were seeking I think not only sexual gratification, but you were showing off, or ticking off an achievement, and you thought perhaps gaining the admiration of your mates by getting a girl on the block. This comes out from your text exchanges before and after the event. You thought that what you did was smart and clever. Although your acts were unforgiveable they derived from this belief you seemed to have that this was a smart and impressive thing to do, despite the fact that it was an appalling act of violence.

[49] It seems clear that a person’s full reasoning ability and decision making ability is not entirely formed at the ages of 20 and 21. There is no general rule, and each defendant has to be looked at individually in each particular sentencing exercise. In this case, taking into account what I have seen of you, I think it appropriate to give you all a discount for youth.

[50] I turn to the question of good character. I have read the pre-sentence reports for all of you and the impressive array of testimonials that I have received in respect of each of you. Each of you is a greatly loved family member and a friend or partner

_{of good people in our community. On the face of things you are all sound young}

14 R v Churchward [2011] NZCA 531, (2011) 25 CRNZ 446 at [98].

men with promising futures. I note that you all have good regular employment which involve skill and responsibility. Mr Weenink and Mr McMaster you are experienced beekeepers. Mr O’Neill you are a painter. Mr Morton you are an engineer completing an apprenticeship. Mr Owens you are a glazier and you are completing an apprenticeship. Obviously those apprenticeships cannot be completed at this stage.

[51] None of you have a record that indicates a particular propensity to violence. Two of you, Messrs Weenink and Owens, have for all relevant purposes an unblemished record. In respect of the other three, your offending has been minor, although in your case Mr McMaster, there is repeat blood alcohol offending and some minor dishonesty, and in yours Mr O’Neill, there is some wilful damage. This gives me some pause. In relation to you Mr Morton your record shows some repeat disorderly behavior and other minor offending.

[52] So there can be no doubt that Mr Weenink and Mr Owens are entitled to the full credit for good character. There could be a basis as was pointed out to me by the Crown for distinguishing the other three of you. But having thought about it I am prepared to give the other three of you the same credit. In that respect you can regard yourself as fortunate at being able to coat tail on the records of your two friends. This is because in essence I do not think there is a great difference between any of you in terms of your character and how your personal situations should be assessed.

[53] The great tragedy in this court is the tragedy suffered by the victim who did not in any way deserve what happened and who through no fault on her own has suffered this dreadful ordeal and its long term effects. It must also be said that it is a tragedy that the lives of you five, and the lives of all the good people who love you and support you, are now all blighted by this offending. So I am going to treat you all as having led good lives up to the present time, and as having contributed through your work to our community.

[54] Needless to say I cannot give you any credit for remorse as all of you continue to deny your offending. However, that is not an aggravating factor and does not in any way lead to a higher penalty.

[55] The question is what discount should I give you? For the reasons I have given I am going to treat you in the round, and I emphasise that this is not pulling down the discount for Messrs Weenink and Owens, but rather pulling up any lesser discount I might have given in respect of the other three of you.

[56] In considering the discount for youth and good character, I have looked at a number of comparable sentencings of young persons where the range of total discount for those two factors has been between the 11 to 17 per cent range, although it has to be said the defendants were generally slightly younger than you were. I have decided the right discount to give you for these two factors should be a 15 per cent discount.

[57] If I apply that 15 per cent discount to the 15 year starting point that I fixed as the general starting point, the end sentence is 12 years and nine months’ imprisonment. In your case Mr McMaster it will be 13 years’ imprisonment, three months more. In your case Mr Morton it will be 11 years and four months’ imprisonment, being a rounded calculation.

Minimum term

[58] I turn now to the minimum term. The Crown has invited me to consider whether I should impose a minimum term of imprisonment. The position is governed by the Sentencing Act. The question is whether I am satisfied that the minimum period of imprisonment that would be otherwise applicable under the Parole Act 2002 is insufficient for the purposes of holding you accountable for the harm done to the victim and the community, denouncing your conduct, deterring you and others from committing the crime and protecting the community from you.

[59] You have done terrible harm to this victim, but in terms of the impact of this sort of offending, as I have said, it can be placed at the lesser end of the serious scale.

[60] There is a need to denounce your conduct, but it will already be denounced by the long sentence of imprisonment that I impose.

[61] For reasons that I have already given, I do not accept that there was premeditation the way that is normally understood.

[62] In terms of deterrence and protecting the community, I do not regard those factors as major features of this case. While there are no guarantees, none of you appear to me to be hardened criminals and none of you appear to me to be so stupid and bad that you would get involved in this sort of offending again. I see this offending as an isolated and unforgiveable act of grave misconduct, but not as offending that is likely to be repeated. Indeed, I hope and believe that despite the lack of remorse there is a good prospect that you will, if released on parole in due course, be able to return to our community and live as useful and productive citizens.

[63] So applying the test in R v Brown,15 I do not consider that a release after one- third of your sentence would plainly constitute an insufficient response in the eyes of the community. I have concluded that it is not necessary and not appropriate to impose a minimum term.

Result

[64] Stand up please.

[65] Mr Weenink, I sentence you to 12 years and nine months’ imprisonment on

count 1. I impose concurrent sentences of 11 years and four months’ imprisonment

_{on the other counts.}

15 R v Brown [2002] 3 NZLR 670 (CA) at [28].

[66] Mr McMaster, I sentence you to 13 years’ imprisonment on count 2. I impose concurrent sentences of 11 years and four months’ imprisonment on the other counts.

[67] Mr O’Neill, I sentence you to 12 years and nine months’ imprisonment on count 3. I impose concurrent sentences of 11 years and four months’ imprisonment on the other counts.

[68] Mr Morton, I sentence you to 11 years and four months’ imprisonment on

each count, to be served concurrently.

[69] Mr Owens, I sentence you to 12 years and nine months’ imprisonment on count 5. I impose concurrent sentences of 11 years and four months’ imprisonment on the other counts.

[70] Please stand down.

...................................

Asher J