R v Mould [2016] NZHC 154 (12 February 2016)

Last Updated: 17 May 2016

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-009-009740 [2016] NZHC 154

THE QUEEN

v

ISAAC JASON MOULD TROY MATUA JAMES MCIVER

Hearing:	12 February 2016
Appearances:	D L Orchard for Crown A S Greig for Defendant Mould S Hembrow for Defendant McIver
Sentencing:	12 February 2016

_{SENTENCING REMARKS OF GENDALL J}

Introduction

[1] Isaac Mould and Troy McIver, you appear today for sentence having been found guilty on 25 November 2015 by a jury of one count each of sexual violation by rape. Each charge carries a maximum penalty of 20 years’ imprisonment.

_{[2] You may be seated until I ask you to stand.}

R v MOULD [2016] NZHC 154 [12 February 2016]

Facts

[3] I set out briefly the facts. On 23 May 2014 the victim, a girl aged 16 and still at school at the time, was at her home in Woodend. You, Mr Mould, were organising a group of friends to go to Woodend Beach for a bonfire and in the early evening you arranged for the victim to be contacted and invited to the bonfire.

[4] Thereafter, the victim was picked up in a vehicle by you, Mr Mould, and your group of friends including [...], who had been a close friend of the victim for some time.

[5] Your group then travelled to a liquor store in Woodend and purchased alcohol. Mr Mould, you bought for [...], and the victim, a box of RTD drinks and you bought yourself other alcohol.

[6] You then travelled to Woodend Beach. Once on the beach you walked a short distance from the entrance, and assembled and lit a driftwood bonfire. Alcohol brought to the beach was consumed and others arrived. It seems that in addition to the seven or so young men who were at the bonfire that night, the victim was the only female there, apart from one other young woman who had arrived later and was there for a time with her boyfriend.

[7] As the night progressed and considerable alcohol was consumed the victim says she was subjected to unwanted kissing and cuddling by a number of men present. You, Mr McIver, and another friend then stood her up and walked her towards the tussock covered sand dunes. Mr Mould, you and a few other friends followed behind a little time later.

[8] The victim asked where you were going and said she wanted to go back to the bonfire but she says her pleas were ignored. Once in the privacy of the sand dunes you, Mr McIver, it seems continued kissing the victim and a short while later she found herself on the ground surrounded by you, Mr Mould, and other young men.

[9] The evidence provided by the victim and evidence of bruising to parts of her body have suggested that she was held down on the ground whilst you, Mr Mould, ripped off her shorts. The victim resisted, she starting fighting and struggling and says she tried to get up but was unable to. She began to scream out for help, in particular for help from [...], but he was too far away at the bonfire and could not hear her cries. You, Mr Mould, then raped the victim by having vaginal intercourse.

[10] After you, Mr Mould, had finished, the victim describes herself as losing strength and finally having given up. Later, when you, Mr Mould, and others left the victim you, Mr McIver remained. You then proceeded to rape her. She said that you rubbed your penis in the sand before inserting it into her vagina which caused severe pain to her and she started screaming.

[11] Meanwhile, [...], it seems was becoming concerned about the victim so he walked from the bonfire towards the shadows of the sand dunes. He passed you, Mr Mould [...] and your group of friends walking back to the bonfire. It is then that he heard two screams from the victim and he quickened his pace towards her.

[12] [...], on locating the victim in the sand dunes, saw you, Mr McIver, having sexual intercourse with her. At that point her shorts had been removed completely and you had your pants down.

[13] [...] shone the torchlight on his mobile phone onto your face and he told you to get off the victim, which you did. You then had a verbal altercation with [...] and then you, Mr McIver, walked away back in the direction of the bonfire. [...] and the victim then left the beach and he assisted her in cleaning herself up before they were collected from the beach by the victim’s mother.

Sentencing Process

[14] I now turn to the sentencing process and in doing so I note, Mr Mould and Mr McIver, that I am required to have regard to purposes and principles of sentencing in the Sentencing Act. Those most relevant to this case are to hold you accountable for the significant harm you have caused to the victim here; to denounce your conduct and to deter you or other people from committing similar offending. I

must also take into account the seriousness of your offending in comparison with other offences, the need for consistency in sentencing, and to recognise the immense harm your offending has done to the victim. In doing so, however, I must also bear in mind my obligation to impose the least restrictive outcome appropriate in the circumstances.

[15] However, I must also, as I see it, assist as far as I can in your rehabilitation and reintegration. This principle is especially significant because of your relatively young ages and what has been described in probation reports before me as your low to moderate risk of reoffending. While the statutory framework imposed by

Parliament requires a presumption of imprisonment in relation to sexual offences,¹

rehabilitation and reintegration needs to be a major focus when sentencing young sexual offenders like yourselves. Therefore, in sentencing you, I must balance the principles of denunciation and deterrence against principles of rehabilitation and reintegration.

[16] I have given thought as to how I should approach the sentencing. I must, of course, sentence each of you individually but in fixing a starting point I have asked whether I should consider you both together. I have decided that ultimately I will consider the starting point for you both collectively as I am satisfied that culpability distinctions between you, whilst they may exist, are not great.

[17] So turning now to the sentencing process itself, this requires me first to assess the appropriate starting point and to consider the culpability of your offending. In fixing that starting point, I am bound by the tariff judgment of R v AM (CA27/2009), a decision delivered by the Court of Appeal. In that case the Court established four

bands for sexual offending delineated by the seriousness of that offending.²

[18] The Crown submits that in this case your offending falls into the lower part of band three, with a starting point in the region of 14 years. Band three is a sentencing band giving sentences of imprisonment of 12 – 18 years. For that band there must be

_{aggravating features for a serious sexual offence such as rape at a serious level,}

¹ _{Crimes Act 1961, s 128B(2).}

² R v AM (CA 27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 (CA).

involving two or more aggravating factors, increasing culpability to a high degree, such as a particularly vulnerable victim, or an offender acting in concert, or serious additional violence, or more than three of those factors to a moderate degree. This includes particularly cruel, callous or violent single episodes of offending.

[19] Your counsel, Mr Mould, however contends that the present offending falls, at the very least, at the higher end of band one, or at most, within the lower end of band two.

[20] At the outset I need to say that band one, which is for rape offending at the lower end of the spectrum is clearly not appropriate in this case. Band two, however, having a starting point of 7 – 13 years, is appropriate for a scale of offending and levels of violence and premeditation which are in relative terms regarded as moderate. This band two covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence. It is appropriate for cases which involve two or three of the factors increasing culpability, again, to a moderate degree. And your counsel, Mr McIver, concludes the offending here falls within the mid range of band two and he suggests that a starting point of 10 years is appropriate here.

[21] In assessing the appropriate band for this offending, I need, first, to consider the aggravating features of the incidents in question.

[22] First, to an extent it could be said there were multiple offenders here in the sense that there were two rapes in succession. Mr Mould, you admitted that when you were having sexual intercourse with the victim, there were three other males present. The indignity that the victim suffered being raped in front of a group of young males cannot be understated. Although you, Mr McIver waited for Mr Mould and others to leave before you raped the victim, this was only after a short time where the victim had become tired of struggling and resigned to her fate. The effect is, therefore, in many ways similar.

[23] Secondly, there was a moderate degree of violence over and above that which would normally be associated with rape. When you, Mr Mould, raped the victim,

she says she was held down and her legs forced apart and that this had caused bruising to her arms and legs. A level of violence inflicted by you, Mr McIver, she said, was even more serious in that you rubbed sand on your penis before raping her. The severe pain she said was caused to her made her scream in discomfort.

[24] Thirdly, and to an extent, there was an abuse of trust by you, Mr Mould. Section 9(1)(f) of the Sentencing Act recognises that a breach of trust is a relevant aggravating factor. Often in a case of this type the trust involved is one of a familial relationship or a situation where someone has been placed in a position of responsibility. That is not the case here. Here we have a situation where the victim has said she regarded you as a brother, Mr Mould, and thought that she was amongst friends. That is why she says she was at the bonfire. However, I do not consider this as a major aggravating factor under all the circumstances here because the breach of trust contemplated in the decision of R v AM contemplates something more than this.

[25] The fourth aggravating feature is the vulnerability of the victim. The victim was only 16 years old at the time of the offence and clearly alcohol affected. Even though you both were only three or four years older, you should have been able to contemplate the vulnerability of a high school teenager. She had been drinking and was out of her depth at the start being the only female and, later, only one of two females in the group. Both of you took full advantage of her vulnerability.

Victim impact statement

[26] I now turn to the emotional harm suffered by the victim and her family. Before the Court are victim impact statements from the victim and her mother. They make very sad and distressing reading. And today we have heard from the victim herself who, with some considerable courage, has read her statement to the Court. She has been diagnosed with Post Traumatic Stress Disorder as we have heard. She has serious anxiety and suffers multiple panic attacks when she is out in public. She feels unsafe in her day-to-day life and has trust issues, especially with males. Because of the Post Traumatic Stress Disorder, she says she was unable to achieve her academic potential and failed her Level 3 NCEA exams.

[27] From the statement to the Court from the victim’s mother, it is also clear emotional harm here extends to her immediate family. Seeing the trauma suffered by the victim, her younger sister is now cynical about relationships, and appears to have created a tough external persona. The parents of the victim have gone to the extent of moving houses in order to avoid the possibility of encountering you, Mr Mould, in particular, in their neighbourhood. The harm you have both caused was not only to the victim herself but to the rest of her family who now have to deal with this horrific event.

[28] After assessing all these aggravating factors, I consider that both offences before the Court fall within the mid-range of band two. As mentioned, this band is reserved for a scale of offending termed as moderate. Of relevance here, it involved offending against a vulnerable victim, offences committed to a degree in concert with another, and a moderate degree of violence.

[29] I therefore set the starting point for both defendants, Mr Mould and Mr McIver, at ten years’ imprisonment. This is the starting point proposed by your counsel, Mr McIver, and I agree it is the appropriate level here.

[30] In terms of personal mitigating factors, I am mindful that both of you, Mr Mould and Mr McIver, were relatively young, being only 19 or 20 years of age at the time of the offending.

[31] For you, Mr McIver, this is your first appearance in court. You have provided some excellent references to the Court. The pre-sentence report states, and I quote:

This offence represents a total departure from your previous clean criminal record and seemingly pro-social existence. It appears the combination of alcohol use, reduced inhibitions, group mentality, and sexual arousal have led to a high risk situation and ultimately calamitous outcome.

[32] The pre-sentence report goes on to note you, Mr McIver, have a steady job and very supportive employer and family, and you are assessed as being at low risk of reoffending. However, you still fail to show any degree of remorse or to recognise the high risk situation you placed yourself in by having group sexual contact with a relatively unknown young female under the influence of alcohol. The

report asserts that you appear to have limited awareness of the impact of your actions on the victim as well. But, notwithstanding these aspects for your youth and your clean record, I am prepared to give you a discount of ten percent. This brings your sentence down to one of nine years’ imprisonment.

[33] Mr Mould, whilst you have a modest list of criminal convictions, none of them are of the same nature or seriousness as the current conviction. The pre- sentence report before the Court portrays this offence as a sharp escalation in your pattern of offending. I will therefore put these offences to one side in considering your sentence. Mr Mould, you also have a supportive community, with loving and supportive family, friends and employer.

[34] Mr Mould, and indeed Mr McIver also, I hope that imprisonment which will follow will give you a strong insight as to what life will be like if you do not straighten up and get your acts together.

[35] Mr Mould, your offending history means that you are not entitled to credit for previous good character. But, in the hope that you will in time take this opportunity to successfully rehabilitate and reintegrate into society, and as a mitigating factor for your relative youth, I am prepared to give you a five percent discount, bringing your sentence to one of nine years six months’ imprisonment.

[36] What will happen to you both from here depends very much on your own responses while you are in prison. I recommend to you and the prison authorities that you take advantage of any counselling and treatment which is available to you whilst you are in prison for these matters. I sincerely hope that you do so.

Sentence

[37] Mr Mould and Mr McIver, would you please stand.

[38] Mr Mould, on the charge of sexual violation by rape, I sentence you to nine years and six months’ imprisonment.

[39] Mr McIver, on the charge of sexual violation by rape, I sentence you to nine years’ imprisonment.

[40] There is to be no minimum period of imprisonment imposed.

Three Strikes Warning

[41] Mr Mould and Mr McIver, you have both now been convicted on charges that bring into play the Three Strikes legislation. The charges on which you have been found guilty are offences covered by this legislation. I am now required to deliver to you the Three Strikes Warning.

[42] From this time on, if you or either of you are convicted of any serious violence offence, excluding murder, you will receive a second and final warning. Furthermore, if you are sentenced to a term of imprisonment for that offence, other than preventive detention or life imprisonment for manslaughter, you will serve the entirety of the sentence without parole or early release at that point. If either of you are convicted of murder after you receive this first warning then you will be sentenced to life imprisonment. You will serve the life term without parole unless it would be manifestly unjust for you to do so. If you are sentenced to life without parole this means that you will not be released from prison. If serving such a sentence without parole would be manifestly unjust the sentencing Judge must specify a minimum term of imprisonment that you will serve.

[43] I sincerely hope that this warning proves to be unnecessary. I would like to view these incidents as out of character. Both of you have supportive families and employers. I hope that after serving your sentences you will successfully reintegrate and become upstanding citizens of our community.

[44] Please stand down.

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

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Anthony Greig, Christchurch

Stephen Hembrow, Christchurch