MAHANI v R [2020] NZCA 182

MAHANI v R [2020] NZCA 182 [27 May 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF VICTIM PROHIBITED BY S 203 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA565/2019[2020] NZCA 182BETWEEN WAYNE ARABA MAHANIAppellantAND THE QUEENRespondentHearing: 18 May 2020Court: Brown, Venning and Simon France JJCounsel: S W Hughes QC for AppellantM L Wong for RespondentJudgment: 27 May 2020 at 11.00 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Wayne Araba Mahani pleaded guilty to one charge of sexual violation byunlawful sexual connection, one charge of injuring with intent to cause grievous bodilyharm and one charge of wilful damage to property.1 The victim of all the offences washis partner at the time.[2] Mr Mahani was sentenced by Judge Crayton to five years, four months'imprisonment.2 As it was a second strike offence Mr Mahani must serve that full term.Mr Mahani appeals against the sentence on the ground it is manifestly excessive.Factual background[3] On Friday, 10 November 2017 the victim and Mr Mahani were visiting familymembers. At around 2.00 pm in the afternoon Mr Mahani began drinking. Later thatevening they visited the victim's sister. While there they began to argue. On their wayhome, having left their children at the victim's sister's home, the argument continued.Mr Mahani reached over to grab the steering wheel while the victim was driving.The victim stopped the car and made Mr Mahani get out. She drove home and lockedthe doors to the house. Mr Mahani arrived home shortly after and began yelling thathe wanted to be let in. The victim rang her mother who told her it was too late, andjust to let Mr Mahani in. In the meantime, Mr Mahani had smashed the side windowof the victim's car to retrieve his cigarettes.3[4] The victim let Mr Mahani into the house as she thought if she cooked himsomething to eat he would calm down. But as soon as she opened the door Mr Mahanicharged at her, grabbed her by the throat and slammed her to the ground. He pinnedher to the ground face down. He then put his hands around her neck and choked hernumerous times. The victim had difficulty breathing. Mr Mahani told her he wouldkill her. She believed he was going to as he was using a lot of force. Mr Mahani thengrabbed her by the hair and dragged her into the bedroom. There he banged her headinto the floor and twisted her ears. While she was on the ground Mr Mahani kickedand punched the victim's rib cage on both sides of her body. During the assaultMr Mahani also ripped all her clothes off so that she was naked. He then pulled heronto the bed by her hair. Mr Mahani accused the victim of sleeping with someoneelse. She tried hugging him as she thought it might calm him down.1 Crimes Act 1961, ss 128(1)(b), 128A and 189(1); and Summary Offences Act 1981, s 11(a).2 R v Mahani [2019] NZDC 19438.3 The wilful damage charge.[5] Mr Mahani told the victim to "suck his balls". She did not want to but did soreluctantly as she felt that if she didn't, she would be assaulted further. The victimsucked his penis for less than a minute.4 She described it as very difficult as she hada fat lip as a result of Mr Mahani's earlier assault. Mr Mahani then told her to get ontop of him to have sexual intercourse. After the intercourse they went to sleep.[6] The next morning Mr Mahani told the victim he did not care if she rang thePolice as he would find her and kill her.[7] As a result of the assault on her the victim received the following injuries:(a) extensive bruising to both sides of her rib cage;(b) extensive bruising to her face, forehead and ears;(c) bruising to her arms and hands;(d) strangulation marks to her neck; and(e) swollen and cut lip.[8] The victim required medical treatment at Palmerston North Hospital for herinjuries. She needed IV fluids to assist her kidneys to flush out toxins caused by theextensive heavy bruising to her ribs and kidneys.[9] The victim went to the Police and made a complaint about the violence. Duringthe course of her interview she disclosed the two sexual incidents. Mr Mahani wasinitially charged with unlawful sexual connection and also with rape. The rape chargewas subsequently withdrawn.[10] Mr Mahani has a number of relevant previous convictions, including two ofmale assaults female.4 The sexual violation by unlawful sexual connection (hereafter referred to as the unlawful sexualconnection).The District Court sentence[11] Judge Crayton considered that the unlawful sexual connection on its ownwould support a starting point of seven to seven and a half years' imprisonment.After uplifting that for the preceding violence and considering totality, the Judge tookan adjusted start point of eight years, eight months' imprisonment. The Judge declinedto uplift the sentence for Mr Mahani's previous prior history of violence as heconsidered it was accommodated within the strike framework of the sentencing.[12] Judge Crayton then considered mitigating factors. He gave Mr Mahania substantial discount for personal mitigating matters. The Judge consideredMr Mahani's disadvantaged background, the significant steps he had taken to try andturn his life around, and his genuine remorse all combined to support a reduction of18 per cent from the starting point. The Judge also then allowed a full 25 per centreduction for the guilty pleas. That led to the end sentence of five years, four months'imprisonment.The appeal[13] Mr Mahani does not challenge the credits applied in mitigation.For Mr Mahani, Ms Hughes QC submitted the sentence was manifestly excessivebecause the starting point taken for the unlawful sexual connection was too high.Ms Hughes submitted that the sexual activity and the preceding violent offending werediscrete. She argued that the "heat" had gone out of the situation by the time of thesexual activity and that it should be considered separately.[14] Ms Hughes argued that when considered on its own, the unlawful sexualconnection was brief, and occurred against a background that the parties were in arelationship where sexual intercourse often followed an argument and was the way theparties made up.[15] Ms Hughes emphasised that the victim had initially gone to the Police tocomplain about the violence and it was only during the course of her interview thatthe issue of sexual offending arose. She drew the Court's attention to the followingpassage from the victim's interview:His way of having sex is to say he's sorry, mm .[16] While Ms Hughes accepted that at the time of the unlawful sexual connectionthe victim was vulnerable, given that she had just endured a beating, she submittedthere was no premeditation involved, nor was there any violence or injury involved inthe brief sexual activity itself. Ms Hughes submitted that, importantly, the previousviolence was not delivered for the purposes of extracting compliance with the sexualactivity. Ms Hughes also submitted that Mr Mahani believed that the victim wasconsenting.[17] In Ms Hughes' submission, if the unlawful sexual connection was regarded asa discrete offence, it should have attracted a starting point of no more than five anda half years and, while conceding in her submissions to the District Court that theviolence itself would support a starting point in the range of four years, when totalitywas considered an uplift of no more than 12 months for the violence offending wasappropriate. She submitted the adjusted starting point should be no more than six anda half years. Applying the discounts would lead to an end sentence of four years.Discussion[18] At the outset we make it clear that we do not accept any suggestion thatMr Mahani could have had any reasonable basis for believing the victim consented tothe unlawful sexual connection. As Ms Hughes accepted in her written submissions,Mr Mahani's belief in consent was unreasonable and the victim's willingness toparticipate in the oral sex was not freely given, but was given in an effort to avoidfurther violence. That concession must follow from the summary of facts whichrecords that, in relation to the unlawful sexual connection:The victim did not want to but did so reluctantly as she felt if she didn't do ashe said she would be assaulted further.[19] Nor do we accept the premise underlying the appeal that the circumstances ofthe violence offending can be separated from the unlawful sexual connection whichfollowed it. The offending cannot be compartmentalised in that way. The context ofthe unlawful sexual connection was that, immediately prior to it, the victim had beendragged by the hair to the bedroom, her clothes had been stripped from her, and shehad been pulled onto the bed by her head. Immediately before that, she had beenseverely kicked, beaten and throttled.[20] Despite the fact the victim had sustained a fat lip as a result of the earlierbeating she was forced to provide oral sex to Mr Mahani. Immediately after thepassages in the victim's interview that Ms Hughes referred us to, the victim went onto say:Yeah, and I tried to tell him I couldn't, "my lips is, I have a fat lip, I can't doit". "But just try". So I tried again and I said "It's sore". Then he tells me tojump on top.[21] The fact the victim may have been conditioned to submit to Mr Mahanibecause of their abusive relationship does not decrease the seriousness of the sexualoffending. The starting point of seven and a half years for the unlawful sexualoffending was, given the background to the offending, open to the Judge. The upliftfor the earlier violence was, in the circumstances, modest.[22] Further, as the Crown submits, the starting point for the totality of the offendingof eight years, eight months could be sustained in a number of ways. Even if weaccepted Ms Hughes' argument that the starting point for the unlawful sexualconnection should have been no more than five and a half to six years, an uplift of fourto five years was available for the serious violence offending that immediatelypreceded it.[23] The case of R v R provides a helpful check to the starting point in this case.5The appellant had gone to his ex-partner's house for a pre-arranged visit. An argumentfollowed during which he threatened her with a knife and strangled her repeatedlyuntil she lost consciousness. He then left the property but later returned and demandedsex. When she refused he raped her. This Court pointed out the principal aggravatingfeature of the sexual offending was the violence that led up to and accompanied therape (even though in R, the appellant had left the property for a period before returningto commit the rape). The violence of the attack had rendered the victim vulnerable.It was over and above the violence inherent in the act of rape. This Court considered5 R (CA13/2017) v R [2017] NZCA 462.that would have placed the offending within band 2 of AM.6 However, the sentencingJudge had added an uplift of three and half years' imprisonment for the violentoffending to the eight year starting point for the rape. This Court pointed out that thiswas effectively one overall incident and concluded there was an element ofdouble-counting in the resultant starting point of 12 years' imprisonment.7 This Courtconsidered a seven year starting point for the rape with three and a half years uplift forthe violence offending would have been appropriate. The overall starting point shouldhave been 11 years' imprisonment.[24] The rape in R may be regarded as more serious than the unlawful sexualconnection in this case, but the previous violence in the present case was at least asserious. In R the victim was restrained, strangled and threatened with a knife but shewas not physically beaten, kicked and stripped as the victim in the present case was.[25] As this Court has said on numerous occasions, the focus must be on the endsentence, not how it is arrived at. The same principle applies to consideration of anadjusted starting point which reflects more than one offence and when the Court isrequired to then stand back and consider totality.[26] However it is viewed, an adjusted starting point of eight years, eight monthswas well within the range available to the Judge when the issue of the totality ofMr Mahani's offending against the victim in this case is considered.[27] As there is no challenge to the discount applied the appeal against the endsentence of five years, four months must be dismissed.Result[28] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent6 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.7 The 12 years took account of a further six month uplift for the charge of perverting the course ofjustice.