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Gene Skipper v/s The Queen

    CA No. 696 of 2012
    Decided On, 15 April 2013
    At, Court of Appeal of New Zealand
    By, THE HONOURABLE MR. JUSTICE WHITE
    By, THE HONOURABLE MR. JUSTICE MACKENZIE & THE HONOURABLE MR. JUSTICE MALLON
    For the Appellant: A J S Snell, Advocate. For the Respondent: G H Allan, Advocate.


Judgment Text
MacKenzie, J.

Introduction

[1] The appellant was convicted, following a jury trial in the District Court at Napier before Judge Adeane, on one count of indecent assault, one count of sexual violation by rape, and one count of sexual violation by unlawful sexual connection, against one complainant. He was sentenced to 12 years’ imprisonment. He appeals against that sentence. An appeal against conviction, included in the original notice of appeal, was not pursued.

The offending

[2] The appellant stood trial with an associate, Mr Karetu, who was also found guilty of the charges he faced. The offending was described by Judge Adeane in his sentencing notes in these terms:[1]

These events began when Mr Karetu located the complainant, a 21 year old girl alone, apparently emotionally distressed and drinking in her car in a Hastings carpark by night. He befriended her and persuaded her to drive him to an acquaintances home where they might procure some Ecstasy. The girl obviously had an interest, not only in alcohol, but drugs as her evidence revealed. They set off on a journey during which, at Karetu’s direction, they picked up three other men. Unbeknown to the complainant at this time, Karetu was a recent recruit to the Mongrel Mob Notorious Chapter and the three men who she had picked up were more senior members of that same group.

The car was then driven to a remote riverside location where the men’s design soon became clear. The girl was variously manhandled, sexually propositioned, indecently assaulted and then raped by Skipper and likewise forced into oral sexual connection both with him and the other two men present. Karetu oversaw the events which he had set in train, ignored the girl’s protests and urged her to comply. On my assessment of the evidence, her acquiescence was extorted perforce of the circumstances and by the unmistakeable threat of more violent means being adopted if that proved necessary.

These matters shortly came to an end, the group dispersed in the early hours of the morning. The identity of the other two men involved remains unknown, no doubt due to the gang ethic which underpinned this whole adventure and which survived even the giving of evidence by Mr Skipper. Karetu, however, kept the victim with him throughout the day that followed, a course of action which, with hindsight, can be seen to be a means of prolonging his control and oversight of her. Eventually, however, he lost patience with her, threatened to stab her and run her over with a motor vehicle and assaulted her and after that she was able to extricate herself from the position and duly complained to the police.

During the day and while with associates of Karetu, she had changed and washed most of her clothing except by an absolute coincidence, a bra which she had been wearing, which was later taken by the police and in which a tiny DNA trace led to the identification of Skipper as one of the participants. Hence we are in this position today, two of the four participants are known and before the Court, two are not. But, as the Crown submits, this was group activity involving four men in total and sight must be kept of that fact.

The sentencing

[3] In fixing the placement of this offending within the bands described in R v AM,[2] the Judge described the culpability factors in that case. He identified as relevant in this case:

(a) Premeditation, particularly on the part of Mr Karetu.

(b) That the complainant was detained, and taken to a remote location where the duress of force of the circumstances was quite overwhelming.

(c) Vulnerability in that the victim had consumed liquor, was a person with significant emotional issues of her own and was vulnerable in what followed. He noted that she was not physically harmed.

(d) Multiple offenders, not just the two who faced trial. He described the degree of violation and humiliation of the victim as significant and said: 'It had that pack aspect to it that so often characterises gang rapes of the kind'.

[4] The Judge accepted the Crown submission that the offending was at the top of band 2 of R v AM. He adopted a starting point for the rape of 12 years imprisonment. That starting point was adopted for both offenders.

[5] In discussing personal factors, the Judge noted the appellant’s gang connections. He found no remorse or mitigating evidence in the personal circumstances of either offender. The Judge made an adjustment for Mr Karetu to reflect his youth, and the fact that he was currently serving a term of imprisonment. His sentence was nine years, cumulative on that existing term. The Judge made no adjustment to the starting point for the appellant. He accordingly reached an end sentence of 12 years for the appellant, with sentences of four years and two years for the sexual violation and indecent assault respectively to be served concurrently.

[6] The Judge then considered whether a minimum period of imprisonment should be imposed. He said:[3]

The Crown has carefully outlined the four reasons by reference to which a minimum non-parole period is appropriate and I accept that submission. Skipper, giving evidence, was at pains to persuade the jury, albeit unsuccessfully, that gang rape was an aberration left behind in the 1980s. Sentences imposed in this Court, in my view, should be designed to ensure that that becomes so.

[7] He imposed a minimum period of imprisonment of six years on the appellant and five years for Mr Karetu.

Submissions

For the appellant

[8] Mr Snell for the appellant submits that the sentence was manifestly excessive because the starting point (which was also the end point) was too high. He submits that the Judge erred in his assessment of the culpability factors and that these errors affected the starting point adopted. He also submits that a minimum period of imprisonment should not have been imposed.

[9] As to planning and premeditation, Mr Snell submits that the premeditation involved was that of Mr Karetu alone and that the Judge wrongly also attributed that to the appellant, for whom there was no premeditation beyond that inherent in forming the necessary intent. As this Court held in R v Taylor, premeditation which is limited to necessary intent will not generally be an aggravating factor.[4]

[10] As to detention, Mr Snell submits that the victim voluntarily went with Mr Karetu and that there was an opportunity for her to leave the vehicle when they stopped at the address where the others were collected. Detention, as an aggravating factor for the appellant, must have occurred after he got into the car. Mr Snell submits that it was only a 10 minute drive or so to the riverside location where the offending took place.

[11] As to vulnerability, Mr Snell acknowledges that the victim was vulnerable but submits that this was only to a limited extent and that her vulnerability arose in part from the voluntary consumption of alcohol and drugs. As to harm to the victim, Mr Snell submits that there was no physical harm to the victim and no impact beyond that inherent in the offending and the trial process.

[12] As to there being multiple offenders, Mr Snell submits that while there was more than one person present, only one person, the appellant, had sexual connection with the victim. Mr Snell distinguishes this situation from cases involving gang rapes where multiple persons have had sexual connection with the victim.

[13] As to the degree of violation, Mr Snell submits that this was no more than that inherent in the elements of the charges on which the appellant was convicted and that the degree of violation was not such as to constitute an aggravating feature increasing culpabilities.

[14] Mr Snell emphasised that the sexual encounter was brief and ended because the victim was protesting. He also emphasised that although a number of aggravating factors were present, they were of limited extent.

[15] Mr Snell also submits that imposing a minimum period of imprisonment was unnecessary. He refers to the decision of this Court in R v Taueki[5] as to the test to be applied, and, in the application of that test to sexual violation offending, to Harrison v R, R v Gordon, and R v Wirangi.[6] He submits:

(i) The offending was not as serious as the Judge considered it to be, particularly when reviewed against other instances of 'gang rapes' – in this case there was sexual violation of the Victim by only one person;

(ii) The offending is an isolated incident or [sic] reasonably short duration (so far as the actual sexual activity occurred);

(iii) The Appellant was not particularly successful in his efforts to have sex with the Complainant;

(iv) The offending did not involve the use of any violence beyond that which is inherent in the offending itself;

(v) Beyond the presence of other males at the time of the offending, there is nothing overtly degrading about the behaviour and matters came to a swift end shortly after protestations by the Victim;

(vi) The finite sentence of imprisonment adequately met the purposes of section 86(2) of the Act;

(viii) Whilst the Appellant had previously been imprisoned for other offending - the longest previous sentence imposed was 3 years imprisonment for unrelated drug offending – the present sentence was a significant increase on that; and

(viii) The Appellant has no previous history of sexual offending to give rise to concerns about the need to protect the public.

For the Crown

[16] Mr Allan for the Crown submits that the offending is at the top of band 2 in R v AM. It involved the aggravating features of: planning and premeditation; clearly implied threats of physical harm; a vulnerable victim; and offenders acting in concert. Mr Allan also submits that the Judge would have been justified in regarding harm to the victim as an additional aggravating factor. Mr Allan submits that it would have been open to the Judge to place the offending in band 3. Mr Allan submits that the Judge’s adoption of a starting point in the overlap between bands 2 and 3 cannot be impugned as excessive.

[17] As to the minimum period of imprisonment, Mr Allan submits that the Judge’s acceptance of the Crown submission at sentencing, that this offending and the appellant’s personal circumstances engaged each of the four statutory bases for the imposition of a minimum period of imprisonment, was understandable. Mr Allan submits that this offending was repugnant in its calculation and predation and had especially serious impacts on the victim. It was borne of a perverse and enduring gang ethic to which the appellant had demonstrated a continued allegiance. Mr Allan submits that in terms of s 86(2) of the Sentencing Act 2002 these factors called for denunciation, the ascription of accountability, deterrence and measures to protect the community.

Discussion

Starting point

[18] We consider that the Judge was entitled to find premeditation as an aggravating factor affecting the appellant’s culpability. The Judge found that, from the time Mr Karetu picked up the three other men, including the appellant, there was a premeditated plan to take the victim to the riverside location with a view to committing the offending which occurred there. It was, on Mr Snell’s submission, about a 10 minute drive. When they arrived, the victim was told to go around to the back of the car. All three men who were involved in sexual assaults on the victim wore condoms. Those actions constitute steps in premeditation and planning beyond the premeditation inherent in the formation of the necessary intent, as referred to in R v Taylor.[7]

[19] The Judge was also correct to find that the presence of the four men in the car, one of whom was driving it, constituted a detention sufficient to constitute an aggravating factor in terms of R v AM. One of the four men was wearing a gang patch, and others were wearing red items. A call to the victim’s cellphone from her mother was cut off and her cellphone was confiscated. This added to the element of detention.

[20] The involvement of all four men, including the forced oral sexual connection with two of them as well as the appellant, meant that the aggravating factor of offenders acting in concert was also present.

[21] Although all sexual violation involves harm to the victim and the sentence must reflect that, we accept the submission that harm to the victim was not engaged as a separate aggravating factor increasing culpability in this case. The Judge also took that view. He noted the emotional effect on the victim, but did not enumerate harm to the victim as a factor increasing culpability under R v AM. There was, however, as the Crown submits, a clearly implied threat of physical harm. The circumstances were such that the victim was properly regarded as vulnerable, albeit not to a serious extent.

[22] Mr Snell, in both his written and his oral submissions, has said all that could possibly be said on the appellant’s behalf in relation to the aggravating features. These submissions do not persuade us that the starting point was excessive. We accept that some of the aggravating features were not among the worst of their kind. Had all the aggravating factors been more serious, then placement in at least band 3 would have been appropriate. For example, this Court recognised in R v AM that gang rape is likely to fall within band 4. The placing of this offending at the top of band 2 indicates that the fact that only one offender committed sexual violations while accompanied by others, was appropriately reflected in the weighting exercise. We consider that the seriousness of the aggravating factors, viewed collectively, justified the Judge’s placement of the offending at the top of band 2. Mr Snell placed particular reliance on R v Dale by way of comparison.[8] However, that case predated R v AM, it was a Solicitor-General’s appeal, and it involved quite different facts.

[23] For these reasons, we consider that the Judge’s starting point of 12 years was within the available range. There were no personal factors which required a deduction from this starting point. The end sentence of 12 years was not manifestly excessive.

Minimum period of imprisonment

[24] A minimum period of imprisonment may be imposed under s 86(2) of the Sentencing Act 2002 if the usual non-parole period would be insufficient for all or any of the four purposes in s 86(2). These are: holding the offender accountable for the harm done to the victim and the community; denouncing the conduct in which the offender was involved; deterring the offender or others from similar offending; and protecting the community from the offender. The Judge held that all four were applicable, without elaborating on his reasons for that conclusion.

[25] The principles to be applied were discussed by this Court in R v Taueki in these terms:[9]

In our view, the criticism that the imposition of a minimum period of imprisonment leads to resentencing or double counting of aggravating features is unsustainable in the light of the current wording of s 86(2). The Sentencing Act contemplates a two-stage process, involving the setting of the nominal (maximum) sentence as the first stage, and undertaking the exercise required by s 86 (where it is applicable) as the second stage: Brown at [35].

That second stage itself requires a sentencing Judge to address two questions. The first is whether a minimum period of imprisonment should be imposed. If that question is answered affirmatively, it is then necessary to address the second question – how long should the minimum period be?

The primary focus of the first question is the statutory test in s 86(2), as set out at para [52] above. As this Court recently noted in R v Walsh CA 281/04, 19 May 2005 at [25], the four factors referred to in s 86(2) are matters which correspond with four of the purposes of sentencing set out in s 7(1): s7(1)(a), (e), (f) and (g). The question before the Court is whether serving one third of the nominal sentence is insufficient for all or any of those four purposes. The Court must focus on those purposes when determining whether to impose a minimum period of imprisonment. The principles in s 8 and the aggravating and mitigating factors in s 9 are applicable only to the extent that they are relevant to those four purposes. …

[26] This Court’s decisions in Wirangi and Harrison recognise that a minimum period will not normally be required for a single rape with no unusual features.[10] The present case involved a single incident. The appellant has no previous convictions for sexual offending. These factors point against the need for a minimum period. However, there were in this case aggravating features. While there was only a single incident, it involved three separate sexual offences. There were the aggravating features to which

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we have referred. These features were relevant, under ss 8 and 9 of the Sentencing Act, in fixing the nominal sentence. To the extent that they are also relevant to the s 86(2) purposes, they are to be taken into account in deciding whether a minimum term should be imposed. The conduct of the appellant, acting in concert with others as we have described, to subject the victim to the violation which she suffered, engages the s 86(2) purposes, particularly those of denunciation and deterrence of others. [27] For these reasons, we conclude that the Judge did not err in finding that the s 86(2) test had been satisfied so that a minimum period should be imposed. The decision whether or not to impose a minimum period fell within the discretion of the judge. Some judges may not have imposed a minimum period but it was not plainly wrong to impose one here. There is no sufficient basis for this Court to intervene. [28] The next question is how long should that minimum period be? The period otherwise applicable would be four years. The additional period required to reflect the statutory purposes must necessarily be more than nominal. The period adopted by the Judge, six years, cannot be said to be manifestly excessive. Result [29] The appeal is dismissed. 1. R v Skipper DC Napier CRI-2011-041-114272, 12 October 2012 at [2]-[5]. 2. R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750. 3. R v Skipper, above n 1, at [14]. 4. R v Taylor [2012] NZCA 348 at [12]. 5. R v Taueki [2005] 3 NZLR 372 (CA). 6. Harrison v R [2011] NZCA 642; R v Gordon [2009] NZCA 145; R v Wirangi [2007] NZCA 25. 7. R v Taylor, above n 4. 8. R v Dale CA332/96, 12 December 1996. 9. R v Taueki, above n 5, at [53]-[55]. 10. Harrison v R and R v Wirangi, above n 6. Rapana v R [2013] NZCA 62.
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