R v Daly [2014] NZHC 1922 (14 August 2014)

Last Updated: 22 August 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-009-001212 [2014] NZHC 1922

THE QUEEN

v

_{DANIEL JUAN DALY}

Hearing:	14 August 2014
Appearances:	D L Elsmore and C Newman for Crown M M Dixon and M M Cole for Prisoner
Judgment:	14 August 2014

_{SENTENCING NOTES OF DUNNINGHAM J}

[1] Mr Daly, you appear for sentence today having been found guilty on

23 June 2014 by a jury of one charge of male assaults female. That charge arises out of events that occurred in the early morning of Friday 25 January 2013. You were acquitted on a further six counts against this complainant and four against another complainant, and one count was dismissed under s 147 of the Criminal Procedure Act 2011.

[2] You first met the complainant on Manchester Street in Christchurch, at about

1.45 pm on the morning of Friday 25 January 2013. The complainant was 19 years of age, and had, just four weeks earlier, commenced working as a prostitute.

[3] After some small talk, there was agreement that she would accompany you for the rest of the night for paid sex. It is accepted, that as part of this discussion, you said something along the lines of “it could get rough”, to which she answered

_{“I’m not scared of you”. While there was disagreement about payment}

R v DALY [2014] NZHC 1922 [14 August 2014]

arrangements, it is clear that when asked whether you had the money for a night of sex, you showed her the considerable cash you were carrying, and said that you did.

[4] The two of you then got a taxi to go back to the YMCA where you were staying. Before she got into a taxi the complainant texted her friends to let them know that she was going off with you, for the night.

[5] When the two of you got to the YMCA you initially went onto the balcony and, after waking the woman in the neighbouring room, had a cigarette on the balcony. The complainant went to the bathroom and made a telephone call to her friend to let her know where she was, before returning to the room where sexual activities commenced.

[6] On your own admission, the sexual activity that then ensued was rough, involving activities such as thrusting your fingers into her vagina. However, I focus on the physical assaults which you accept occurred, as the charge on which you were convicted is based on these. They include grabbing the complainant’s jaw between your thumb and forefinger, covering her mouth and nose, and slapping her on the face repeatedly. As said in your own words: “I didn’t just slap her once. I slapped her face. I put my hand over her mouth and nose. In some of those times I had my other hand where I had, holding on to her hair and I used the grip I had on her hair to move her head, equivocally her neck. I have gone on to restrain her hands by way of having them above her head and I have used one of my hands to restrain her wrists

above her head”.¹

[7] You accept that this “roughness”, including the hard slapping, increased in tempo over time. You also admit spitting at her, including spitting into her mouth and squeezing her neck by pressing your forearm across it. You say you combined this with the face grabbing, smothering, hair pulling and slapping. The complainant’s evidence is that some of the suffocation went on for between 10 and

15 seconds causing her to feel groggy or start choking. During this ordeal the complainant repeatedly told you to stop and get off her, but you continued to strike

_{or choke her again.}

¹ Page 208, notes of evidence.

[8] On this matter I am satisfied, from the jury’s verdict, that the complainant’s reaction made it sufficiently clear that she was not consenting to this, and that you could not reasonably have believed that she was, notwithstanding the discussion about rough sex at the start of that evening’s encounter.

[9] Unusually in this case, although I sought a standard pre-sentence report from the Probation Service, I do not have one. You have advised through your lawyer that you made contact with the Probation Officer advising him that you would not consent to an electronically monitored sentence, nor to home detention, or a community based sentence. You are resigned to the fact that a prison sentence will be imposed and, as the Probation Officer notes, given your record of non-compliance with community-based sentences, the imposition of release conditions may lead to further breach action and Court appearances; therefore imposing such conditions post-release for you would be discouraged. The Probation Officer was left with the impression that you would not participate fully in efforts to complete a pre-sentence report and I proceed to sentencing on that understanding.

[10] You have however provided your own letter to the Court which says you accept you must be accountable for your actions, you have completed a Stopping Violence programme and have made a contribution to the Women’s Refuge, which, as explained today, was some voluntary work.. You say you are trying to get this chapter of your life finished so that you can live a more balanced, and insightful, life with the support of friends and family.

[11] In this regard, it is obvious that you have a previous criminal record. It includes a significant number of convictions including for cannabis possession and related offences, theft, driving offences including excess blood alcohol offences and offences for assault, disorderly behaviour and the like. The most serious offences, however, are six charges of sexual connection with a young person between the ages of 12-16 years and one of blackmail. You were sentenced to eight months and six months imprisonment respectively on those charges.

[12] While, as you say, you do not have a record for violence against women, you do have convictions for assault on a police officer and for fighting in a public place, albeit some years earlier.

[13] I have recently obtained a victim impact statement. Unsurprisingly the incidents that night have had an impact on the victim. The victim notes that:

With regard to work, it has been difficult to deal with males. I’m more cautious of their body language. I’ve even made misjudgements about clients and I’ve overreacted.

She says:

My partner and I considered moving to Nelson for work. However I wasn’t able to due to the fear of meeting Dan in the street or somewhere else.

And she says:

Dan made me feel degraded as a woman. I put trust in him that I would go with him. I was the vulnerable in the relationship. Due to the work I do, anything can happen at any time, and these situations can be scary for a female.

Crown Submissions

[14] The Crown has submitted that in sentencing you today, I should have particular regard to the sentencing purposes of denunciation, deterrence, accountability and rehabilitation.

[15] In setting the starting point for your offending I must look to the offence itself and the Crown here submits that I should have regard to the duration of the violence, which the Crown says, lasted over a period of approximately five hours. I should also have regard to the scale of the violence, which I have already described, and which involved repeatedly hitting the complainant, smothering and choking her and spitting at her.

[16] The Crown also emphasises the vulnerability of your victim saying that prostitutes are vulnerable in the course of commercial sexual activity and your offending represents a breach of trust on your part, by ignoring the complainant’s

protestations and withdrawal of consent. And of course the victim impact statement does reinforce that submission.

[17] The Crown’s submissions correctly point out that there is no tariff for the offence of male assaults female and that sentences can vary greatly to reflect the circumstances of the offence. However, the Crown refers me to a decision in R v Werahiko,² where a defendant, who was known to the complainant, came into the complainant’s house where she was with her 20 month old baby. Although she asked him to leave he refused and he then punched her several times in the back of the

head and abused her calling her a slut. The Court of Appeal held in that case that a sentence of 12 months imprisonment on that charge alone would have been entirely appropriate.

[18] The Crown observes that in this case, while there were no children in the house, the scale of violence perpetrated against the complainant was more serious, so again submits that a starting point of 12 months imprisonment is appropriate. The Crown then points to the aggravating features relating to you, which includes your previous convictions for assault and fighting in a public place, and notes there are no obvious mitigating factors. The Crown does not suggest what the uplift from

12 months should be.

Defence Submissions

[19] Your lawyer, Ms Cole, has filed submissions in response to the Crown’s submission. In relation to the seriousness of the offence she invites me to come to my own conclusion about the duration of the offending. She notes there were no injuries to the complainant and she does not accept the Crown’s proposition that the victim was more vulnerable than normal.

[20] Your lawyer also seeks to distinguish the case of R v Werahiko,³ which suggested 12 months imprisonment was appropriate. Your lawyer says, given your limited history of violent offending and the lack of injury, I should start at a lower

_{point than 12 months and not uplift that sentence for your previous offending. Your}

² R v Werahiko [2008] NZCA 24.

lawyer seeks to draw stronger comparisons with the case of Sheen v New Zealand Police,⁴ where assaults against the appellant’s sister over a period of 12 hours including backhanded slaps and spitting which caused bruising and bleeding, resulted in a sentence of 200 hours community work and two years supervision.

[21] Your lawyer acknowledges that you refuse to participate in a community- based sentence and therefore refers me to another case, Reihana v R,⁵ which discusses a range of cases where the Court has had to sentence on this charge. That case observes that there is no tariff or, if you like, standard punishment, for this offence because the circumstances in which it is committed and of the offenders can vary greatly. Those cases discussed a range of sentences up to 12 months

imprisonment. She submits that in light of those cases, an end sentence of three to six months imprisonment is appropriate for this offending.

Purpose and Principles of Sentencing

[22] Having regard to those submissions I turn now to my decision on sentencing. In this regard, I accept that the primary purposes of sentencing in this case is to hold you accountable for your offending and to promote your sense of responsibility for what you have done, to denounce the conduct and to deter you and other persons from committing the same or similar offences.

[23] In sentencing you, I must also take into account the gravity of the offending in this particular case, including your degree of culpability. I must also take into account the seriousness of this type of offence in comparison with other types of offence as indicated by the maximum penalty of two years imprisonment described for this offence. I also must, as counsel has urged on me, endeavour to be consistent with the sentences imposed in respect of similar offenders committing similar offences in similar circumstances, although as I will go on to explain, there are some difficulties in identifying cases which are readily comparable with the circumstances

_{in your case.}

⁴ Sheen v New Zealand Police CRI-2005-404-34, 3 February 2006.

[24] I must also take into account your personal circumstances and impose the least restrictive outcome that is appropriate in them.

Setting the Starting Point

[25] In the present case, the relative seriousness of the offence is indicated in part by the maximum penalty of two years imprisonment. The law provides, however, I must then look at the particular circumstances of what happened and determine how serious this offence is seen in light of the range of offending which might attract this charge.

[26] Here I have had regard to the fact the assault in question was not an impulsive act where you responded in the heat of the moment, as many such charges are. Instead, I am satisfied that the assault involved a number of actions over a prolonged period of time. The complainant telephoned her friend to say she had arrived at your room a little after 2.30 am and sexual activity appears to have commenced around 3.00 am. From this point onwards it is clear there was a prolonged episode of violence. The complainant’s account is that the choking, hair pulling, slapping and spitting went on for about two hours with her asking to stop and crying, and then resumed again from about 4.30 am until about 7.30 to 8.00 am, that is for another three or more hours.

[27] Your evidence did not put a timeframe on it, but you accept that the rough sexual activity, which included the hitting, spitting and choking, went on for, in your words, “a long time”.

[28] I am satisfied, looking at the combined accounts given in evidence, that the complainant was subjected to several hours during which physical assaults were administered in the way I have described, so I am satisfied that it was a prolonged assault.

[29] I do, however, accept that the assaults caused minimal injury. The medical evidence concluded that there was a small red area about two centimetres square on the tip of her nose, there was an area of pinkness on the right side of her neck and there was an area of patchy redness with mild blue discolouration on the left side of

her neck. The photographs taken appeared to show slight swelling on one side of her face. The complainant reported stiffness in her neck and sore lips. These injuries, while relatively minimal, do confirm that the physical assaults were vigorous, albeit controlled, so that they did not escalate above a certain level.

[30] However, I consider the main matter pointing to the gravity of the offending in this case is that the offending was designed solely for your gratification. You had no reason or provocation to hit or otherwise assault the complainant except that you gained pleasure and enjoyment from doing so. You did it without any regard to her feelings, and it is clear from the complainant’s evidence and her subsequent victim impact statement that she found the experience degrading and humiliating.

[31] I also accept that the complainant was in a position of vulnerability. A prostitute does place herself in a position where she must trust her client not to take advantage of the circumstances by harming or taking advantage of her. Your actions that morning were a significant abuse of that trust.

[32] Other than the fact that no serious injury was suffered, I do not consider there are any mitigating features of the offending.

[33] I therefore have to decide where this offending sits in the spectrum of this kind of offence. As counsel have already pointed out, the Court of Appeal in Reihana has said:⁶

There is no tariff for this offence. The circumstances of its commission and of offenders can vary greatly.

In Reihana a term of five months imprisonment was substituted for the original

10 months where the appellant entered the complainant’s home against her will, and punched her in anger, and where it was his first conviction for violence. In contrast, in the case of R v Nixon⁷ referred to in Reihana, a sentence of 12 months imprisonment was imposed where there was a history of domestic violence on the

_{part of a convicted person.}

⁶ _{At [43].}

⁷ R v Nixon CA87/01, 19 June 2001.

[34] It will be evident that these are not particularly comparable offences. In fact, the nearest example I have found of sentencing for offending in comparable circumstances is a District Court decision in R v Behymer.⁸ In that case the offender was convicted on one count of indecent assault, and one of male assaults female, committed against a prostitute. The offender initially had consensual sex with the prostitute, but then he pressed his hands around her throat, strangling her, while he committed the indecent assault. The assault left her with red marks around her throat.

[35] The sentence imposed in respect of the male assaults female charge was four months home detention, which equates to an eight month prison sentence. While this case, being a District Court decision, is of limited authority, it does reinforce my view on what comprises an appropriate starting point for sentencing in the particular circumstances of this case.

[36] In this case I take, as a starting point, a period of imprisonment of 10 months. This is primarily driven by the prolonged and gratuitous nature of the assault. I would have uplifted that for your previous convictions for violence by two months, but then also applied a discount of the same magnitude, that is two months, for the steps you have taken to hold yourself accountable for this offending. Those include the voluntary completion of the Stopping Violence programme and your self- expressed desire to lead a more insightful and balanced life from this point forward.

[37] I have been asked to consider an emotional harm payment. Unfortunately this has only arisen at this point and I feel I have insufficient material on which to determine an appropriate level of payment, so I am not going to make an order for this simply because I do not have enough information about your means to pay and what level of payment would not be considered an insult to the complainant.

Sentence

[38] Taking these matters into account, I arrive at an end sentence which is the same as the starting point, being 10 months imprisonment.

⁸ R v Behymer DC AK CRI-2009-004-021170 (9 March 2011).

[39] Although the Crown has signalled the need for special release conditions, given the Probation Officer’s comments, and the fact you have already completed a Stopping Violence programme, I do not impose any.

[40] You may now stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch

Public Defence Service, Christchurch