ASAELI v R [2023] NZCA 486

ASAELI v R [2023] NZCA 486 [5 October 2023]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 AOTEAROACA88/2023[2023] NZCA 486BETWEEN FOLAU ASAELIAppellantAND THE KINGRespondentHearing: 19 July 2023Court: French, Thomas and Moore JJCounsel: M Zintl for AppellantM A O'Donoghue and M A Harris for RespondentJudgment: 5 October 2023 at 11.45 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] On 2 November 2022, the second day of his scheduled jury trial, Folau Asaelipleaded guilty to one charge of sexual violation by rape.1 He was sentenced on1 Crimes Act 1961, ss 128(1)(a) and 128B. Maximum penalty 20 years' imprisonment.14 February 2023 by Judge Zohrab in the District Court at Blenheim to four years and10 months' imprisonment.2 Mr Asaeli now appeals that sentence.Factual background[2] At the time of the offending Mr Asaeli was aged 22 and working as a seasonalemployee in vineyards in Marlborough under the Recognised Seasonal Employer("RSE") scheme. He is a Tongan citizen.[3] In the early hours of Sunday, 5 July 2020, Mr Asaeli met the victim at a bar inBlenheim. Neither was known to the other. Both were there with groups of friendsand had been drinking. They danced and kissed.[4] As the evening progressed the victim became increasingly drunk. By 2:00 amshe was intoxicated to the point of unconsciousness. At about this time Mr Asaeliguided her through a closed door to a service area restricted from the public. Secludedand shielded from the view of others, Mr Asaeli raped the victim while she layunresponsive on the ground.[5] At some point, members of the staff, including a barman, security guard andmanager caught sight of what Mr Asaeli was doing. The security guard yelled at himto get off the victim. Mr Asaeli looked up, smiled and continued raping the victim. Inthe end, the guard had to physically pull him off. As he was being escorted away, MrAsaeli broke free from their grip and sprinted off.[6] The staff chased after him, as did two patrons. When the patrons caught up tohim, Mr Asaeli offered them money in exchange for letting him go. They refused andkept hold of him until the Police arrived shortly afterwards and arrested him. As oneof the officers escorted him across the road, Mr Asaeli said words to the effect of,"Take my money, you can have my bank".[7] Later, in an attempt to explain his actions to the Police, Mr Asaeli claimed thevictim was his girlfriend.2 R v Asaeli [2023] NZDC 2627 [Judgment under appeal].[8] The Victim Impact Statement ("VIS") records that the victim received bruisesto her legs and injuries to her knee. In the days following, she described her knee as"incredibly sore" requiring specialist treatment from a physiotherapist. She said thepain was a constant reminder of what had happened to her. She reported the emotionalharm as significant. She felt ashamed, sick and emotional. She has developed amistrust of men. She suffered "fleeting" self-harm ideation. Her anti-depressantmedication was extended when before the offending she was about to come off it.Decision under appeal[9] The Judge began by determining the appropriate sentencing band by referenceto the guideline case of R v AM and the relevant culpability assessment factors.3 Theseincluded significant harm to the victim, a modest degree of planning andpremeditation, and the victim's vulnerability.4 The Crown submitted and the Judgeaccepted, taking these factors into account, that the offending straddled the top end ofband one and the lower end of band two.5 A starting point of eight years' imprisonmentwas adopted.[10] Despite some misgivings, the Judge accepted that a credit of 15 per cent wasappropriate for Mr Asaeli's guilty plea notwithstanding that it was very late in thepiece, because it spared the victim "the ordeal and the humiliation of giving evidencebefore a jury of strangers in a small community".6[11] The Judge saw no scope for discounts based on lack of male role modelling orMr Asaeli's inability to manage the cultural differences in New Zealand.7 However,he did award a credit of 10 per cent to reflect the fact that the appellant would bedeported and unable to return to the country, which would mean a significant loss ofincome for his family in Tonga.8 The Judge also noted there would be hardship inprison as a result of the language barrier, and that after his release he would not be3 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.4 Judgment under appeal, above n 2, at [10]–[13].5 At [16]. The starting point for band one is six to eight years' imprisonment, while the startingpoint for band two is seven to 13 years' imprisonment, see R v AM, above n 3, at [93] and [98].6 Judgment under appeal, above n 2, at [17–[18].7 At [22].8 At [29].received well back in Tonga as a result of issues his offending might cause others underthe RSE scheme.9[12] The Judge awarded separate discounts of five per cent each for youth, previousgood character and remorse.10 Mr Asaeli had no previous convictions.11 Heapologised to the Court and the victim and paid the latter $1,000 by way of a voluntaryreparation.12 He expressed a willingness to engage in restorative justice.[13] The Judge thus identified discounts totalling 40 per cent from the starting pointof eight years' imprisonment, leading to an end sentence of four years and 10 months'imprisonment.13Approach on appeal[14] This Court must allow the appeal if satisfied that for any reason there was anerror in the sentence imposed on conviction and a different sentence should beimposed.14 The focus is on the sentence imposed, rather than the process by which itis reached.15 The Court will not interfere where the sentence is within the range thatcan properly be justified by accepted sentencing principles.16 To this end the conceptof a "manifestly excessive" sentence is well-engrained and there is no reason not toapply it.17Discussion[15] Mr Zintl, for the appellant, submitted that the end sentence of four years and10 months' imprisonment is manifestly excessive on account of two factors. First, thestarting point of eight years' imprisonment was too high, and ought to have been nomore than seven years. Secondly, the five per cent discounts each awarded on accountof youth, previous good character and remorse were inadequate.9 At [29].10 At [29].11 At [5] and [30].12 At [27].13 At [29].14 Criminal Procedure Act 2011, s 250(2).15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].16 At [36].17 At [35].Was the starting point too high?[16] Addressing the starting point, Mr Zintl referred us to three cases, each of whichhe submitted involved more serious offending than the present, but which attractedlesser or comparable starting points.18 Having reviewed these cases, we are of theview that they are broadly similar to the present case and do not support a significantlylower starting point than the eight years that was adopted.[17] In each, the offending was largely opportunistic, although it tended to involvesteps taken to seclude or isolate the victim. The victims were similarly vulnerable byvirtue of the influence of alcohol (sometimes in combination with other drugs),although the victims in R v Chetty19 and van der Merwe v R20 regained consciousnessduring the act. While in both Tahiri v R21 and Chetty there was a breach of trust whichis not present here, there was no discussion in those cases of significant harm to thevictim. Given both the physical and psychological effects described by the victim,this is a factor which elevates the seriousness of the present offending as per theguidance in AM.22 Other differences include the fact that the offender in Chettystopped when asked, whereas Mr Asaeli continued after he knew he had beendiscovered and stopped only after being pulled off the victim.[18] AM also gives examples of cases at the upper end of band one.23 One isR v Stusky, which we consider to be comparable if not slightly less serious than thepresent, where a starting point of eight years and three months imprisonment (slightlyabove band one) was upheld on appeal.24 There, the defendant and victim who hadpreviously been unknown were drinking. The defendant pushed the victim into thebushes and raped her despite her struggles. As in the present, there was a modestdegree of premeditation in that steps were taken to seclude the victim. We considerthe present case is arguably more serious in that the victim was unconscious andincapable of any form of resistance throughout the offending, and the appellant18 Tahiri v R [2013] NZCA 73; van der Merwe v R [2021] NZHC 1108; and R v Chetty [2016] NZHC1957.19 R v Chetty, above n 18.20 van der Merwe v R, above n 18.21 Tahiri v R, above n 18.22 R v AM (CA27/2009), above n 3, at [44].23 At [94].24 R v Stusky [2009] NZCA 197.persisted even after being discovered and told to stop. He also attempted to avoidarrest.[19] We are satisfied the starting point of eight years, while at the upper limit, wasnonetheless within the available range.Were the discounts for previous good character, youth and remorse adequate?[20] We turn next to the adequacy of the discounts; first the discount for previousgood character. Mr Asaeli was evidently entitled to some credit for this factor onaccount of his lack of criminal record.25 In addition, there was some evidence beforethe Court of his contribution to the community through the RSE scheme. Against this,however, must be an assessment of the period over which he exhibited goodcharacter.26 For this reason, whilst discounts for previous good character are notlimited to older offenders,27 youth do not generally receive significant discounts forprevious good character. Five per cent was entirely reasonable in the circumstances.[21] As for the discount for remorse, we accept that there were expressions ofgenuine remorse warranting recognition. However, we also accept the Crown'ssubmission, citing this Court in Tahiri, that these could have been given greater weightif Mr Asaeli had accepted responsibility earlier in the piece.28 His plea, on any analysiswas very late. The emotional consequences for the victim were touched on in her VISof 14 December 2022, (which appears to have been completed after she had learnedthe appellant was seeking a sentence indication), some 29 months after the offending.She said:With the defendant pleading not guilty this sent me back into an emotionaldownhill spiral. It sickens me he has not taken ownership of what he has done.He put me through months of torment with court hearings constantlyreminding me of what has happened, and now I have another one with thedefendant questioning what the sentence will be if they did plead guilty.I just wish this was all over. Would the defendant please admit what they havedone so I can move on with my life.25 R v Hockley [2009] NZCA 74 at [30].26 Parkin v R [2018] NZCA 404 at [16].27 R v Fangupo [2019] NZHC 2896.28 Tahiri v R, above n 18, at [38].[22] As it stands there may have been room for a slightly more generous discountthan five per cent although not in our view significantly so.[23] As for the discount for youth, this Court has previously stated that there is nofixed discount for youth and that it does not necessarily justify a significant reductionin and of itself.29 More recently, however, it has been accepted that discounts for youthwill generally vary from 10 to 30 per cent.30 Aged 22 at the time of the offending,Mr Asaeli could not expect to receive the same level of discount as was awarded to a17‑year old in Tahiri (16.6 per cent), nor the 30 per cent awarded to a 14 to 15-year‑oldin W (CA722/2021) v R.31 In our view, it would have been open to the Judge to selecta discount closer to 10 per cent rather than the five percent he allowed.[24] While we have found that the discounts for remorse and youth could have beenslightly higher, this is qualified by the fact that the remaining discounts which are notchallenged on appeal might be regarded as generous.[25] As noted, Mr Asaeli received a 15 per cent discount for his guilty plea despiteit being extremely late. It would have been open to the Judge to select a significantlylower discount for this factor, say 10 per cent, which would still reflect the savings tothe criminal justice system and the victim not having to proceed to trial.[26] Mr Asaeli also received a 10 per cent discount to reflect his inevitabledeportation and the resulting hardship to him and his family. This Court has onmultiple occasions stated that the inevitability of deportation itself is not a mitigatingfactor justifying a reduction in sentence.32 However, the sentencing Court is stillobliged to take into account any particular circumstances which would render asentence disproportionately severe.33 The Judge was alert to this when he noted thehardship Mr Asaeli would face in prison as a foreign national.34 The 10 per centdiscount therefore appears to reflect both this and the fact of deportation. It might29 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83].30 W (CA722/2021) v R [2022] NZCA 442 at [61].31 Tahiri v R, above n 18; and W (CA722/2021) v R, above n 29.32 Singh v R [2022] NZCA 261 at [12]; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [168];and R v Zhu [2007] NZCA 470 at [23].33 Sentencing Act 2002, s 8(h).34 Judgment under appeal, above n 2, at [29].have been lower if the Judge considered only the mandatory factors under theSentencing Act 2002.[27] In any event, on a sentence appeal the Court is required to stand back and assessthe sentence as a whole. In doing so we are not satisfied that an overall discount of40 per cent is inadequate in the circumstances of this case, nor that an end sentence offour years and 10 months' imprisonment is manifestly excessive.Result[28] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Nelson for Respondent