R v Narayan [2014] NZHC 183 (18 February 2014)

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

Charge: Plea:	Sexual violation (4); Aggravated robbery (2); Attempted sexual violation; Indecent assault Not Guilty
Counsel:	K Raftery for Crown MW Ryan for Prisoner
_Sentenced:	_{18 February 2014}

(a) Two counts of aggravated robbery – the maximum period of imprisonment for each charge is 14 years;

(b) Four counts of sexual violation – the maximum period of imprisonment for each of those offences is 20 years;

[2] I will set out the facts briefly and for the record. You went to trial, of course, and I heard the evidence, as did you.

1997. Your principal victim was a young prostitute who had just finished entertaining a client in her car. You came up alongside the vehicle and you shot the client with a stun gun which incapacitated him. You told the prostitute to stay in the car, saying that you had a gun. You warned her not to run anywhere.

[4] You made the client get out of the car, take his pants off and lie face down on the ground. You demanded and took the client’s wallet and the prostitute’s bag. You ordered the prostitute out of the car and made her lie down on the ground next to the client. You then threw the client’s car keys away and told him to depart.

[5] You then took the prostitute to another car park. On the way there you made her lie on the ground and you touched her pubic area. You put a pair of shorts over her head and led her to a nearby car. You put her in the passenger seat and you drove

off with her, driving for about five to 10 minutes. Needless to say, your victim was terrified.

[6] You took her to a secluded place and you made her get out of the car. She still had the shorts over her head. You made her lie on the ground and take her clothes off. You then penetrated her anus and vagina with your finger for a brief period. You tried unsuccessfully to put your penis into her anus and you then made her suck your penis. You got her to roll over and this time you succeeded in inserting your penis into her anus causing her pain. You used a condom and when you had finished you discarded the condom.

[7] You threatened the prostitute. You told her to say, if she was asked, that she had been assaulted by a client. You told her that if she told anyone you would shoot her and you said you knew where she lived. You then let her go.

[8] It took a long time to link you to this offending, and that was only as the result of advances in DNA testing.

[9] I have read the pre-sentence report and, as I will come to, the most relevant factor I have to consider in your sentencing is your number of convictions.

[10] In 2002, you were sentenced to 15 years’ imprisonment for four charges of unlawful sexual connection, one of attempted unlawful sexual connection, and two charges of aggravated robbery. That offending occurred after the offending for which I have to sentence you today. In effect, the offending for which I have to sentence you today was your first offending and you were only, I think, 19 years old at the time.

[11] What is particularly worrying in the pre-sentence report is that you are assessed to be at a high risk of further violent sexual offending. The report says you lack insight into your offending, you lack concern for your victims, you are impulsive, you have an interest in deviant sexual practices, and you have a possible personality disorder.

[13] I note that you have been waitlisted for the Adult Sex Offender Treatment Programme since 2006 but, as Mr Ryan has confirmed, you have not been permitted to attend that programme.

[14] In sentencing you, I have to fix a start point which takes into account what you actually did. I then have to adjust the start point by taking into account your personal circumstances.

[15] I have read the cases cited to me by the lawyers. There is another case, which I referred to a moment ago when discussing your situation with your lawyer, Mr Ryan. That is the case of R v Tonihi, decided in 2011.¹That involved an attack on a prostitute, and I found that case to be helpful.

[16] Looking at all of the cases and comparing them to your situation, I find that a start point for your sexual offending in this case should be 11 years’ imprisonment.

[17] I also have to consider the other charges, particularly the aggravated robbery charges. Given that the offending against the client involved the use of a stun gun and there was degrading conduct in addition, in my view that offending alone would justify a start point of at least four years’ imprisonment.

[18] However, I have to take into account that this was a single, if prolonged, incident which started in the car park when you attacked the client and the prostitute and finished some period later when you released the prostitute. Therefore, I stand back and look at the totality of that incident and I adopt an overall start point of

[19] I now have to adjust that overall starting point by looking at your circumstances.

[20] You were 19 years old at the time of the offending and, as I said, this was your first offending.

[21] The sentencing purposes and principles of promoting in you a sense of responsibility and emphasising rehabilitation and reintegration would have been strong factors had you been sentenced shortly after the offending. But you were not. You went on to offend in similar and very serious ways.

[22] In 2002, you were sentenced to 15 years’ imprisonment. You have been in custody since 2000. That is a circumstance in your life which I must consider very carefully.

[23] The law says that I must consider the totality of your position. I cannot just sentence you to 14 years’ imprisonment. That would fail to take into account that this was the first offending in what became a series of offending for which you have been sentenced already.

[24] In my view, if this offending had been included in the charges on which you were sentenced in 2002, the overall sentence would have been 20 to 22 years’ imprisonment. I agree in this respect with the submission of your lawyer, Mr Ryan. In other words, a further five to seven years’ imprisonment would have been imposed upon you.

[25] My task is not to attempt to put you in the very same position as you would have been back in 2002 had your 1997 offending been included. It was not and there has now, in 2013, been a separate trial. I am aware of the ongoing effects your offending has had on your victim. They are very serious effects. But I do have to ensure that what I sentence you to now is not disproportional having regard to the

[26] Accordingly, I am going to reduce the start point of 14 years’ imprisonment to seven years’ imprisonment. This will be cumulative with your current sentence.

[27] I am also going to order that you serve a minimum period of imprisonment. I consider that the circumstances of your offending are so exceptional that this is justified.²

[28] I will not repeat the facts. However, I consider the premeditation, the use of a stun gun and the degrading treatment of both victims to be relevant. So too is your state of mind and your psychology.

[29] Mr Narayan, having seen you give evidence at your trial, I fully understand the comments that have been made by the author of the pre-sentence report. I judge you to be a dangerous man. If I could, I would sentence you to preventive detention. But I cannot. You were too young at the time of the offending. Your offending was contributed to by a disturbing sexual motivation. You lack remorse and empathy and you are at, as I have said, a high risk of re-offending even after 14 years in prison.

[31] Mr Narayan, on each of the four lead counts of sexual violation, you are sentenced to seven years’ imprisonment.

[32] On the count of attempted sexual violation, you are sentenced to three years’

[36] You will serve a minimum period of imprisonment of four years. [37] You may stand down.

High Court of New Zealand Decisions

R v Narayan [2014] NZHC 183 (18 February 2014)