TAMATI v R [2018] NZCA 463

TAMATI v R [2018] NZCA 463 [30 October 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA196/2018[2018] NZCA 463BETWEEN ALEXANDER TAMATIAppellantAND THE QUEENRespondentHearing: 11 October 2018Court: Cooper, Venning and Collins JJCounsel: E R Fairbrother QC for AppellantE J Hoskin for RespondentJudgment: 30 October 2018 at 11 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Tamati appeals a minimum period of imprisonment (MPI) of five years thatwas imposed as part of a sentence of 10 years' imprisonment in respect of charges ofkidnapping, male assaults female, assault with a weapon, sexual violation by unlawfulsexual connection, aggravated assault, threatening to do grievous bodily harm,supplying methamphetamine and possessing a methamphetamine pipe.[2] Mr Tamati pleaded guilty to the drugs charges. He was found guilty of theother charges following a trial before Judge Adeane and a jury in the District Court atNapier. He was sentenced by Judge Adeane on 16 March 2018.[3] Mr Tamati's notice of appeal was filed out of time. The Crown accepts it isnot prejudiced by the delay. We accordingly grant Mr Tamati's application for leaveto appeal out of time.Background[4] Mr Tamati is a 61-year-old high-ranking member of the Mongrel Mob.Between 1 January 2016 and 24 October 2016, he supplied the complainant (C), a19-year-old woman at the time of the offending, with approximately half a gram ofmethamphetamine. She did not pay for the drugs immediately and consequentlybecame indebted to Mr Tamati for the sum of $800. She endeavoured to keep a lowprofile and to avoid contact with Mr Tamati.[5] On 26 November 2016, two of Mr Tamati's associates located C in thebedroom of the address where she was staying. They took her, against her will, to anaddress where Mr Tamati was waiting. Inside the lounge of that property, Mr Tamatithreatened C and punched her in the head. He then swung a heavy gas burner at C'shead, but stopped before striking her. He then ignited the burner and attempted toapply the flame to C's upper leg. She, however, recoiled away. Mr Tamati thengrabbed C by the hair and forced her to kneel before him and suck his penis for aperiod of time. While this took place, Mr Tamati punched C in the head several timesand made derogatory comments to her. Eventually, Mr Tamati fell asleep. C tried toescape but was stopped by Mr Tamati's associates, who took her back to him.Mr Tamati then woke up, grabbed her by the hair and produced a pair of scissors,threatening to stab her with the scissors and cut off her hair. Mr Tamati then assaultedC and made her return to her knees and again suck his penis. He then penetrated C'svagina with his fingers. After a period, Mr Tamati was interrupted by an associate.Discussions took place about allowing C to leave. She was allowed to do so afteragain sucking Mr Tamati's penis.[6] On 21 January 2017, police conducted a search of Mr Tamati's property andlocated a methamphetamine pipe.[7] Mr Tamati's record of criminal offending spans from 1972 to 2010. In 1978,he was convicted in relation to three rapes and sentenced to a total of six years'imprisonment. His most recent convictions are for relatively minor drug offending,resisting police and breaching court-imposed conditions.[8] The pre-sentence report noted Mr Tamati felt sorry for C and that heappreciated she was probably traumatised by his offending. In a comprehensive reportobtained for the purposes of s 27 of the Sentencing Act 2002, Mr Tamati confirmedhis remorse. The s 27 report contains a detailed explanation of Mr Tamati's disturbingchildhood, the sexual abuse to which he was subjected as a state ward and hisdisconnection from his cultural roots.Sentencing decision[9] Judge Adeane imposed a 10-year sentence of imprisonment for the sexualviolation offending. The Judge imposed concurrent sentences of between nine monthsand three years' imprisonment for the other offending. Judge Adeane consideredimposing an uplift of about six months' imprisonment to reflect the supplying ofmethamphetamine charge, but elected not to do so because of Mr Tamati's expressionsof remorse. Nor did the Judge impose an uplift on account of Mr Tamati's previousoffending.[10] In addressing the imposition of an MPI, Judge Adeane said:1Plainly the protection of the community and the denunciation of youroffending are important objects at this stage. Given that you retain a positionof influence and would be well positioned to bring about further criminalmischief, in my view, the Crown application for a minimum non-parole periodis irresistible in the circumstances of your case and I settle that minimumnon-parole period at five years' imprisonment.1 R v Tamati [2018] NZDC 5347 at [19].Grounds of appeal[11] Mr Fairbrother QC submitted on behalf of Mr Tamati that this was not a casethat merited the imposition of an MPI. In particular, Mr Fairbrother submittedMr Tamati's personal circumstances were pertinent to determining if an MPI shouldbe imposed and that Judge Adeane failed to have regard to the least restrictive outcomethat was appropriate in the circumstances of this case.2[12] No issue was taken with the sentence of 10 years' imprisonment imposed onMr Tamati and Judge Adeane's decision to refrain from imposing any uplift for thedrug offending or to reflect Mr Tamati's previous offending.Section 86 of the Sentencing Act 2002[13] The imposition of an MPI is governed by s 86 of the Sentencing Act 2002.Section 86(2) of the Sentencing Act confers discretion to impose an MPI of no morethan two-thirds of the full term of the sentence if the sentencing Judge is satisfied thatreleasing the defendant under the Parole Act 2002 after serving one-third of thesentence would not be sufficient for all or any of the following purposes:(a) holding the offender accountable for the harm done to the victim andthe community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committing the same ora similar offence:(d) protecting the community from the offender.Analysis[14] In R v Brown, this Court explained that when an MPI is being considered it isnecessary to have regard to the relevant principles in ss 7, 8 and 9 ofthe Sentencing Act.3 This Court has also explained that a sentencing Judge shouldavoid giving the impression, when imposing an MPI, that credit for any mitigatingfactors has been erased: "That could occur if there were to be a concentration on the2 Sentencing Act 2002, s 8(g).3 R v Brown [2002] 3 NZLR 670 (CA) at [32]–[36].seriousness of the offence, to the exclusion of the circumstances of the offender."4 It isnecessary to ensure, however, that any personal circumstances that the Court is urgedto take into account address the purposes set out in s 86(2)(a)–(d) of the SentencingAct.[15] Sentencing judges should assess the necessity for an MPI on a case by casebasis. That requires a careful appraisal of the defendant's personal circumstances andhow they impact upon the criteria in s 86(2) of the Sentencing Act.[16] We are satisfied that Judge Adeane was correct to impose an MPI of five yearsin the circumstances of this case. Our reasons for this conclusion can be distilled tothe following points:(a) Mr Tamati's offending was particularly serious. He violated and abusedC for his own sexual gratification. His conduct requires the strongestcondemnation. It is also necessary to deter others from offending in thesame or a similar way.(b) Mr Tamati engaged in gratuitous violence in order to teach C a lessonand to make her feel subservient to him. Allowing Mr Tamati to beconsidered for parole after serving just three years and three months inprison would not adequately hold him accountable for the harm he didto C and to the community by his offending.(c) It is of concern that after apparently living a crime-free life since 2010,Mr Tamati chose to engage in such serious offending in this case. AnMPI is necessary in order to protect the community from him.[17] While we are mindful of Mr Tamati's troubled upbringing, his remorse and hisacknowledgement of the impact of his offending on C, we do not think these factorsoutweigh the necessity for an MPI in the circumstances of this case. In our assessment,the MPI imposed by Judge Adeane was warranted and constituted the least restrictiveoutcome that was reasonably available.4 R v Gordon [2009] NZCA 145 at [44]; see also Shaw v R [2016] NZCA 110 at [25].Result[18] The application for an extension of time to appeal is granted.[19] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent