R v S [2012] NZHC 952 (23 April 2012)

Last Updated: 16 May 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 TAURANGA REGISTRY

CRI 2010-070-4081 [2012] NZHC 951

THE QUEEN

v

_S

Hearing: 23 April 2012

Appearances: J C O'Brien for Crown

F C Deliu for Prisoner

Sentence: 23 April 2012

_{SENTENCE OF KEANE J}

Solicitors:

Crown Solicitor, Tauranga

R V S HC TAU CRI 2010-070-4081 [23 April 2012]

[1] S, you appear for sentence for a series of offences against your wife, G, between mid April 2008 - 7 June 2009. These offences span almost completely the time during which you lived together as husband and wife. They began shortly after you married in March 2008. They ended shortly before she left your household and entered a refuge.

[2] The most serious of these offences were a series of sexual violations. You stand convicted of a representative count of rape encompassing a series of rapes between mid April 2008 - 7 June 2009. You stand convicted also of a series of violations in May 2009 on a single occasion, a rape, a sexual violation by anal intercourse, and two other violations: digital penetration of the anus and an oral violation. You penetrated G's mouth with your penis.

[3] As well you stand convicted of serially assaulting G between April 2008 and

7 June 2009, by yourself, when you and she were alone, or assisted by your mother. In May 2009, on the day on which the culminating sexual violations happened, you assaulted G with a weapon, a knife, by threatening her with it. Finally, you are for sentence for two threats to kill, one when you presented the knife and the other during the culminating sexual violations.

Context

[4] The Crown case at trial was that you entered your marriage with G unwillingly. You were then in a relationship with a Brazilian woman working in New Zealand on a temporary work permit. The Crown's case was that your mother, intent on seeing you married to a Sikh woman, arranged your marriage with G's uncle, who lived in a town nearby. As a result G, then aged 20, part-way through her schooling, came from the Punjab to the town where you lived to marry you, bringing with her a significant dowry contributed by her family and her uncle.

[5] Within a month of your marriage, the Crown case was, you began to offend against G in two persistent ways. You had sex with her forcefully and, when she found that painful and resisted it, you persisted, using such force was was necessary. Some of the assaults that she complained of in her evidence occurred at that time and

they involved twisting her arms and slapping her, perhaps punching her, and kicking her. Quite independently, the Crown's case was, you and your mother also assaulted her during the day. You played the main part. Your mother assisted you. Again the assaults were of the kind that I have described.

[6] These assaults, as it seemed to me on the evidence, at the early point can only have been to subject G to your will and, just as materially, to the will of your mother. G' evidence was that she became a servant in your household. She kept the house. She cooked the meals. After a time she began working in a pack house but was not able to retain her wages; they went to you. Consistently, her evidence was, you allowed her no freedom of movement. She did not have a cell phone. She did not have access to a bank account. She was only able to leave the house with you or your mother. The only place she actually went to was the Sikh temple. Otherwise she remained at home or she was at work. She was, on the Crown case, completely isolated.

[7] Your assaults on G, the Crown's case was, began to escalate in intensity in March 2009 when your girlfriend ceased to be able to live in New Zealand. She had to return overseas. You actually assisted her financially to do that but you also wished to sponsor her return. It was after that, on the Crown case, that you elected to withdraw your sponsorship of G, to become free to sponsor the return of your girlfriend; a fact, on the Crown case, that you were anxious to conceal from G. In fact she was made aware of her predicament by the Immigration Service itself.

[8] The culminating offences for which you are for sentence, on the Crown case, happened on a day when G's uncle visited your home to speak to you; and, more especially, during the ensuing night. The Crown's case was that he came to the house because your mother asked him to, a fact which she denies. He came to impress on you that you must be true to your marriage. Instead, the Crown's case was, you reacted in an extreme way. You crossed the lounge to where G was in the kitchen making tea. You took up a sharp knife and you threatened her from behind. Very fortunately, that is as far as it went. She reacted rapidly. She moved away and her uncle and your mother took the knife from you. At that time, the Crown's case was, you threatened her life, although you also harmed yourself.

[9] Then, the Crown's case was, later that evening, when you returned home, having had your hand stitched for a cut you had inflicted on yourself, you violated G anally with your penis and your finger. You then raped G. You also penetrated her mouth with your penis. You threatened to kill her. You invited her to consider killing herself.

[10] The Crown case was that you acted in these ways to force G at least to leave your marriage, absolving you of that responsibility and preserving your honour, or even to end her own life. Again, very fortunately, that did not happen. The Sikh community became involved. Her uncle also put her in touch with the Shakti organisation. G left your household after she obtained an interim protection order. She then made her complaint to the police.

[11] In the event, you were not charged with these offences for a considerable time. According to the order of priority by which the police work, G was not immediately at risk. The police officers who gave evidence at trial expressed regret that there had not been a more rapid response. The upshot was that G was not examined at the time of her complaint. She was not examined until 18 months or more later. She also underwent a series of interviews in which, through an interpreter, she expressed herself in different ways to different interviewers.

[12] At trial, your defence was that G's complaint was completely fabricated and that she had complained as she had in order to obtain residency under the New Zealand Immigration policy protecting abused migrant women who can no longer remain with their New Zealand family or return to their family in their country of origin. You and your mother supported that denial, as you were entitled to do, by pointing to the absence of evidence of sustained injury and to the various ways in which G had expressed herself when interviewed. You gave and called evidence.

[13] In the event the jury accepted G's evidence in the face of your denials and the contrasting evidence you called, relying on their assessment of her and, principally, presumably, two strands in the evidence. One was evidence of your relationship with your girlfriend, as it tangibly appeared in your bank records. The other was that G

had suffered a two centimetre anal scar consistent with anal rape. These were vigorously contested issues at trial but clearly the jury were not dissuaded.

Victim impact statement

[14] I have a victim impact statement made for G by a psychologist, who has assessed her since the verdict was entered. The assessment serves the conventional purpose of a victim impact statement by narrating what G said herself in evidence. It also contains a clinical assessment.

[15] Your counsel has objected to the assessment because it was not anticipated at the time of your remand for sentence, and he has not been able to commission any response from another psychologist. Crown counsel contends that it is conventional enough for psychologists to complete victim impact statements and that this statement does not extend beyond the statutory purpose. However, to ensure that sentencing occurs today, in the interests of everyone, she does not oppose me relying on the statement only insofar as it contains G's narrative.

[16] I confirm that I set to one side the clinical assessment. I rely only on what G has said herself; and and that aspect of the statement is unsurprising because it was the subject of her evidence.

[17] As a result of your offences and the end of the marriage, G says, she has been deprived of any family life or support. Clearly she has no place in your family and her family in India have repudiated her. Nor has she been able to play any normal part in the Sikh community in New Zealand. She was confined to a refuge for 12 months and her life since has been dominated by the police investigation and the trial process; an ordeal in itself.

[18] G is now living independently and in work but, she says, in circumstances that are isolating. She lacks any confidence. She has great difficulty sleeping. She has a range of fears. She is on anti depressant medication. The import of what she says is that her life is still in considerable disarray.

Pre-sentence report

[19] Your pre-sentence report stands in your favour to this extent. It says that this offending apart, you are well regarded in the Sikh community in the rural town where you live and you have worked in positions of responsibility. I have a number of letters that confirm that to be so.

[20] Your pre-sentence report, nevertheless, recommends a sentence of imprisonment because of the nature and seriousness of the offences for which you stand convicted. It also puts in issue what risk you might present in a future relationship, given your denial of the offending for sentence. There will be a variety of interventions, it suggests, that will be required to meet the risks that entails.

Sentencing purpose and principles

[21] In sentencing you I must hold you accountable for your offending. I must denounce it. I must impose a sentence that deters you and others from offending in this way. I must recognise the harm to your victim. I must also, to the extent that it is consistent, impose on you a sentence that rehabilitates you, reintegrates you into the community, recognising always you in your family context and your cultural context. I must impose the least punitive sentence consistent with your offending and be conscious of any aspect of your personality or circumstances that might make a usual sentence disproportionately severe.

[22] There is no issue that the sentence to be imposed on you for your lead offences, the sexual violations, must accord with the guidelines set by the Court of Appeal in R v AM.[1] Those guidelines set bands for sentence, taking into account a series of aggravating features, but as the Court said, they cannot be seen as exhaustive. Nor are they to be applied mechanically. I am obliged to evaluate all the

_{circumstances of your offending.}

[23] There is only one other case that resembles yours, R v Prakesh,[2] which also involved a similar spectrum of offending within an arranged marriage. Your counsel has referred as well to two other cases that go to the principal issues that arise on sentence: the relative seriousness of your offending and at what level, therefore, the starting point for your sexual violation offences ought to be and whether a minimum term must be imposed.[3]

[24] I am obliged to take like cases into account in the interests of consistency. That is the whole point of the AM guidelines. But ultimately, as that cases stresses, and as I have said already, my primary focus must be on your offending and your circumstances.

Crown submissions

[25] The Crown submits that for your sexual violations, the representative count of rape, and the vaginal and anal rapes in May 2009 principally, your offending lies at the cusp of two AM categories, band three, which attracts starting points in the range 12 - 18 years imprisonment, and band four, which attracts starting points in the range 16 - 20 years imprisonment.

[26] Band three is appropriate where offending is marked to a 'high degree' by at least two aggravating factors, for instance, 'a particularly vulnerable victim and serious additional violence'.[4] Band four is reserved normally for 'multiple offending over considerable periods'; and, as the Court said, perhaps the 'paradigm case' of such offending is 'repeated rapes of one or more family members over a period of years', especially of teenagers or children.[5]

[27] Aggravating your offending, the Crown contends, are G's vulnerability; the premeditation and motive you brought to your offending against her, whether by way of assault or sexual abuse; the level of violence you inflicted on her in both those

_{ways; the scale and duration of your offending, that it occurred over 13 months; the}

purposes for which you offended, to subject her to your will and ultimately to free yourself from your relationship with her without suffering dishonour yourself; the gains you obtained from her, the dowry and the wages; the extent of the harm she suffered.

[28] It is especially sinister, the Crown contends, that you did not offend against her violently or sexually for conventional reasons, or not for those reasons alone. Rather you offended to make her life so intolerable that she could not endure it, to impel her either to leave you, accepting the shame entailed, or to kill herself. The harm she suffered, the Crown contends, may only involve one two centimetre scar in her anal area, but in the most fundamental sense, the Crown says, you have robbed her of her identity and of her social fabric.

Defence submissions

[29] Your counsel has made clear to me that you continue to deny these offences and thus they cannot be an occasion for remorse. You are, he emphasises to me, to be taken for what you appear to be and what you are accepted to be in your community: a well liked and responsible person. The fact that you brought out your mother from India is one graphic instance.

[30] Though you deny the offences, your counsel says, as he necessarily must, the factors on which the Crown relies as aggravating are not on analysis as aggravating as the Crown contends. At most, your counsel contends, the sexual violations of which you stand convicted lie towards the bottom of band three AM , and warrant a

12 or 13 year starting point. He contrasts your case with R v Pitceathly, where the offending was much more considerable than yours was, and where a 16 year starting point was taken. A two year uplift might there have also been imposed for violent offending, he contends, but the starting point for the sexual offending is the pertinent point of contrast.

[31] Your counsel contends that you are entitled to a 20 per cent discount: the aggregate of four five per cent discounts for (i) your previous good character; (ii) to encourage you to rehabilitate and reintegrate; (iii) to recognise the hardship that you

will undergo in the sentence imposed; and (iv) more broadly, in the exercise of the prerogative of mercy. Such a discount, he contends, without offending the AM guidelines, would bring your sentence close to that imposed in the only case close to yours, Prakesh; a sentence of 11 years.

Conclusions

[32] In sentencing you I begin with G's vulnerability. She is not classically within the categories of the acutely vulnerable: children and mentally impaired persons. She was, however, when she entered your household, vulnerable to you and to your mother in almost every way.

[33] G came to this country at the age of 20 sponsored by you. She relied on your continuing to sponsor her. Her education was incomplete. Her command of English was imperfect. The contrast between her village life in the Punjab and life, even in the rural town where she lived with you, could not have been more complete. To navigate her way in this society she relied entirely on you and your family.

[34] G was entitled to expect, when you married her, that you would safeguard her and treat her with honour. Instead you took violent and sexually violent advantage of her vulnerability, because the marriage was not to your liking, and when you decided to bring it to an end, you did so with considerable violence. You assaulted her sexually to make her life unendurable and to encourage her to accept responsibility for ending your marriage. In that way you hoped to preserve your honour, such as it was, and that of your family. You must have known when you did that that, if she left your family, she could hardly anticipate being welcomed back to her own family, who had invested you with a dowry and were dishonoured by the marriage coming to an end. That did not dissuade you.

[35] So while I accept that G is not classically within the categories of the especially vulnerable, I regard her vulnerability as a significantly aggravating factor in the sentence I impose on you.

[36] Secondly, and I have already alluded to this more than once, I consider, on the evidence the jury obviously accepted, that your sustained violence to G and your sustained rapes of her were quite deliberate. At the very least, initially, they were to keep her subject to your will. You obviously saw her as your chattel. Ultimately, however, your motive became more sinister, as the Crown contends. I take seriously her evidence that you were indifferent to what happened to her and that you did encourage her to end her life.

[37] Thirdly, there was the level of violence you inflicted on her during the course of your marriage. The assaults during the day you inflicted on her a number of times each week were not of the most serious order. What makes those assaults of concern is their frequency, the number of times a week they happened, and also the fact that those assaults during the day did not stand alone. You also used force on her to have your way sexually at night.

[38] I accept that rape does involve a level of coercion, though that is not a formal element of the offence. (The absence of consent, and reasonable belief in consent, are the formal requirements.) However, I consider, you went further. You were gratuitously violent to G sexually, just as you were violent to her during the day. Your level of violence, I am also satisfied, intensified markedly in the cluster of violations that marked the end of your offending. G complained especially of the anal rape and the digital penetration, each of which she found extraordinarily painful. I am satisfied that when you offended in those two ways you were intent on harming her above all else. The two centimetre scar with which she is left is an unusual injury and marks the severity of that assault.

[39] Finally, the effect on G of your offending, suffering as she did these offences over 13 months, and culminating as they did in extreme violence, was predictably profound. Her life in a real sense was destroyed. And though some years have passed since, your offences, compounded by the investigative and trial process, have left G permanently scarred. Objectively, it is difficult to see how she will begin to achieve normality. She may still have the support of Shakti. She may have friends. She may have been to India. But she no longer has a family in New Zealand or a family in India. She has no accepted place in the Sikh community in New Zealand.

[40] For those reasons, I consider, your sexual violation offences warrant a single starting point. It would be artificial to distinguish between them or to rank them. Each is an element in a continuous and consistent course of offending. For those offences I take a starting point of 15 years.

[41] There remains the question what discount you qualify for. You are, I accept, entitled to some credit for an absence of previous convictions. You are also entitled to some level of discount for the fact that your sentence may well prove more severe for you than for others, although that is a difficult assessment to make. It is not possible to fix meaningfully, it seems to me, a percentage that will assist you to rehabilitate yourself and reintegrate. Nor does mercy as a discrete source of discount seem to me to be open in principle beyond these categories. You will receive a 10 per cent discount.

[42] Your sentence for the sexual violation offences will accordingly be imprisonment for 13 years, six months, and for your remaining offences I sentence you concurrently on each to imprisonment for two years. Your effective sentence will remain imprisonment for 13 years, six months.

[43] There remains the issue of minimum term. A minimum term is only warranted if the sentence that I have imposed on you would be insufficient to hold you accountable, to denounce your conduct, or to protect others. The sentence that I have imposed on you is lengthy. It is deterrent in nature and effect and it denounces your offending emphatically. I do not consider that there is any need to impose a minimum term to protect the community.

[44] This offending arose out of a unique set of circumstances and you are entitled to rely on your absence of previous convictions. Once you become eligible to be considered for parole, the Parole Board will be well able to assess whether you then

_{present any risk. I decline to impose a minimum period of imprisonment.}

P.J. Keane J

---

[1] R v AM (2010) NZCA 114.
[2] _{R v Prakesh (CA554/99, 31 August 2010).}

[3] R v TN HC Auckland CRI 2009-057-834, 11 November 2011; R v Pitceathly HC Tauranga, CRI

_{2007-042-425, 21 August 2009.}
[4] _{R v AM at [105].}
[5] At [108], [109].